The opinion
25-293
Stinn v. United States of America
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2025
ARGUED: MARCH 16, 2026
DECIDED: AUGUST 17, 2026
No. 25-293
BRADLEY J. STINN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
________
Appeal from the United States District Court
for the Eastern District of New York
________
Before: WALKER, SULLIVAN, and BIANCO, Circuit Judges.
________
Bradley Stinn appeals from an order denying his petition for a
writ of error coram nobis. In 2009, Stinn was convicted of securities
fraud, mail fraud, and conspiracy to commit the same. At trial, the
jury was permitted to rely on either the traditional fraud theory or the
right-to-control theory of fraud liability. After the Supreme Court
No. 25-293
invalidated the right-to-control theory in Ciminelli v. United States, 598
U.S. 306 (2023), Stinn filed a coram nobis petition in the Eastern
District of New York to vacate his sentence. The district court (Chen,
J.) denied the petition, holding that the right-to-control instruction
given at trial was harmless error. On appeal, Stinn argues that his
conviction is not supported by either the traditional fraud theory or
the now-invalidated right-to-control theory, and that the district court
erred by applying the wrong test for harmless error. We disagree.
For the reasons explained below, we hold that the standard
articulated in Kotteakos v. United States, 328 U.S. 750 (1946), governs
review of harmless error in coram nobis petitions. Stinn failed to
satisfy that test. Thus, we AFFIRM the judgment of the district court.
________
GIL WALTON (David W. Shapiro, on the brief), The
Norton Law Firm PC, Oakland, CA, for Petitioner-
Appellant
VICTOR ZAPANA (David C. James, on the brief),
Assistant United States Attorneys, for Joseph
Nocella, Jr., United States Attorney, Eastern
District of New York, Brooklyn, NY, for
Respondent-Appellee
________
JOHN M. WALKER, JR., Circuit Judge:
Bradley Stinn appeals from an order denying his petition for a
writ of error coram nobis. In 2009, Stinn was convicted of securities
fraud, mail fraud, and conspiracy to commit the same
(18 U.S.C. §§ 1341, 1348, 1349). At trial, the district court instructed
the jury that it could rely on either the traditional fraud theory or the
right-to-control theory of fraud liability. The jury voted to convict on
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No. 25-293
all three counts, and Stinn served a sentence of 144 months of
imprisonment and three years of supervised release.
After Stinn completed his sentence and his term of supervised
release, the Supreme Court invalidated the right-to-control theory in
Ciminelli v. United States, 598 U.S. 306 (2023). Stinn then filed a coram
nobis petition to vacate his sentence. The district court (Chen, J.)
denied the petition, holding that the right-to-control instruction given
at trial was harmless error, and that the traditional fraud theory was
a valid basis for Stinn’s conviction. On appeal, Stinn argues that his
conviction is not supported by either the traditional fraud theory or
the now-invalidated right-to-control theory. He also argues that the
district court erred by applying the test for harmless error used to
evaluate habeas petitions, Kotteakos v. United States, 328 U.S. 750
(1946), rather than the test used on direct review, Chapman v.
California, 386 U.S. 18 (1967).
We disagree. For the reasons explained below, we hold that
Kotteakos is the appropriate standard for evaluating harmless error in
coram nobis petitions. Under that standard, the relevant inquiry is
whether the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Kotteakos, 328 U.S. at 776. Stinn failed
to satisfy that test. Thus, we affirm the judgment of the district court.
BACKGROUND
From 1992 to 2003, Bradley Stinn served as the chief executive
officer of Friedman’s Inc. (“Friedman’s”). Friedman’s was the third-
largest specialty retailer of fine jewelry in the United States, operating
over six hundred stores in twenty states.
Beginning in August 2003, the company’s fortune took a turn
for the worse when it was sued in a civil lawsuit for purported
accounting fraud. The following month, the Securities and Exchange
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Commission and the Department of Justice launched investigations
into the allegations made in the civil lawsuit. By December 2003,
Stinn had resigned as CEO and from the company’s board of
directors. Approximately two years later, the company filed for
bankruptcy.
In 2007, Stinn was charged by superseding indictment in the
Eastern District of New York on three counts of mail fraud, securities
fraud, and conspiracy to commit the same. The indictment centered
on Friedman’s credit-extension program, which allowed low- and
middle-income customers to purchase jewelry on installment plans.
Although the program was lucrative, comprising over half of the
company’s revenues, these customers were at greater risk of
defaulting on their payments. As alleged in the superseding
indictment, Stinn conspired with Friedman’s executives to defraud
investors by masking that heighted risk of default, through falsifying
Friedman’s accounting data and misrepresenting the company’s
financial condition in public reports.
At trial, the government presented evidence regarding Stinn’s
financial motivations for the scheme, including his $352,000 bonus for
2002 and $300,000 salary increase for 2003, and argued that both
“result[ed] [from] the lies the defendant told” regarding Friedman’s
targeted earnings. App’x at 2061. The government presented
testimony from Friedman’s former chief financial officer, Victor
Suglia, who testified that Stinn would not have received his $352,000
bonus “[a]bsent [his] manipulation[s.]” Id. at 1203. Former director
Robert Cruickshank also testified that Stinn received a $300,000 salary
raise, a “much larger increase than anybody else” at the company,
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No. 25-293
because the compensation committee “thought that the company was
doing very well[.]” Id. at 1366.
After the close of evidence, the district court (Gershon, J.)
issued the jury instructions relevant to this appeal. The jury was
instructed that to convict, it must find that the alleged scheme to
defraud “contemplated or intended some harm to property rights of
another[,]” as defined under either of two theories. Special App’x at
3 (internal quotation marks omitted). Under the traditional theory of
fraud liability, Stinn must have “planned to obtain or actually
obtained money from Friedman’s by materially fraudulent
representations[.]” Id. (internal quotation marks omitted). Under the
right-to-control theory, Stinn must have “intended that other
individuals would make investment decisions . . . based on materially
fraudulent misrepresentations.” Id. (internal quotation marks
omitted).
Following these instructions, the jury voted to convict Stinn on
all counts. Because the jury returned a general verdict, there was no
indication as to which of the two theories the jury relied on. The jury
also returned a forfeiture verdict requiring Stinn to forfeit $1,019,000,
including his $352,000 bonus received in 2002, his $300,000 raise in
2003, and other funds improperly obtained from expensed tax
liabilities. The district court then sentenced Stinn to 144 months of
imprisonment and three years of supervised release and ordered him
to pay approximately $5.5 million in restitution and forfeiture.
During his incarceration, Stinn made direct and collateral
attacks on his conviction, resulting in two decisions by our court. On
direct appeal, we rejected Stinn’s argument that the district court
erred in giving a conscious avoidance instruction and a purportedly
coercive charge pursuant to Allen v. United States, 164 U.S. 492 (1896).
United States v. Stinn (“Stinn I”), 379 F. App’x 19, 20-21 (2d Cir. 2010)
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No. 25-293
(summary order). On appeal of Stinn’s habeas petition, pursuant to
28 U.S.C. § 2255, we rejected the argument that Stinn was convicted
under an honest services theory of fraud purportedly rendered
unconstitutional by Skilling v. United States, 561 U.S. 358 (2010). See
Stinn v. United States (“Stinn II”), 515 F. App’x 4, 5 (2d Cir. 2013)
(summary order).
In 2023, the Supreme Court decided Ciminelli v. United States,
holding that “the right-to-control theory is not a valid basis for
liability” for federal fraud. 598 U.S. at 309. 1 Ten months after the
Supreme Court’s decision, Stinn filed a coram nobis petition, and for
Fed. R. Civ. P. 60(b) relief from the denial of his habeas petition in
Stinn II, in the Eastern District of New York. He argued that his
conviction should be vacated because the legal basis for his conviction
rested on the now invalidated right-to-control theory.
The district court (Chen, J.) denied Stinn’s petition. 2 See Stinn
v. United States (“Stinn III”), No. 11-CV-2071 (PKC), 2024 WL 4989241
(E.D.N.Y. Dec. 5, 2024). The district court held that Stinn satisfied the
first two requirements for coram nobis relief: (1) “sound reasons . . .
for failure to seek appropriate earlier relief,” and (2) continuing
collateral “legal consequences from his conviction that may be
remedied” by a grant of coram nobis. Id. at *3 (internal quotation
marks omitted). But the court rejected Stinn’s petition on the last
requirement: (3) the need to show “circumstances compelling [a grant
1 Ciminelli interpreted the meaning of “money or property” under the wire
fraud statute (18 U.S.C. § 1343), not the securities or mail fraud statutes (18
U.S.C. §§ 1341, 1348). Nonetheless, we assume without deciding that
Ciminelli’s “money or property” has a uniform meaning across all three
statues. See Ciminelli, 598 at 312 n.2 (“[W]e have construed identical
language in the wire and mail fraud statutes in pari materia.” (internal
quotation marks omitted)).
2 Judge Gershon recused herself and the case was then reassigned to Judge
Chen. See Stinn III, 2024 WL 4989241, at *2 n.4.
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No. 25-293
of coram nobis] to achieve justice.” Id. (internal quotation marks
omitted). In this regard, the district court ruled that the jury did not
necessarily rely on the right-to-control theory and that Stinn’s salary
raise and bonus were valid property interests under the traditional
fraud theory. Id. at *5–6. Stinn timely appealed. 3
DISCUSSION
On an appeal from the denial of a coram nobis petition, “we
review de novo the question of whether a district judge applied the
proper legal standard, but review the judge’s ultimate decision to
deny the writ for abuse of discretion.” United States v. Mandanici, 205
F.3d 519, 524 (2d Cir. 2000).
Stinn makes two principal arguments. First, he contends that
his salary raise and bonus were not traditional property rights
protected under the federal fraud statutes. Second, he argues that
even if the traditional fraud theory is valid, and his salary raise and
bonus are traditional property interests, his conviction must still be
vacated because the jury was permitted to convict on the now-
invalidated right-to-control theory, “and it is impossible to tell which
ground the jury selected.” Yates v. United States, 354 U.S. 298, 312
(1957). We address each argument in turn.
I. Traditional Fraud Theory
The federal fraud statutes require that the government prove
beyond a reasonable doubt that “money or property” was the object
of a defendant’s scheme to defraud. 18 U.S.C. §§ 1341, 1348. The
Supreme Court has explained that the money or property
requirement extends to both “tangible” and “intangible” property
3
Stinn did not appeal the district court’s denial of his Rule 60(b) relief, and
we thus consider that argument abandoned. See Tereshchenko v. Karimi, 102
F.4th 111, 123 n.5 (2d Cir. 2024).
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No. 25-293
rights. Carpenter v. United States, 484 U.S. 19, 25 (1984). But the object
of the fraud must still be a “traditional property interest” that has
“‘long been recognized as property.’” Ciminelli, 598 U.S. at 309, 314
(quoting Carpenter, 484 U.S. at 26).
On appeal, Stinn argues that “neither [] maintenance of [his]
salary nor [] [his] bonus and salary raise satisfies” that test. Appellant
Br. at 49-50. Regarding the “salary maintenance” argument, Stinn
relies principally on a Ninth Circuit case, United States v. Yates, which
held that “a scheme whose object is to deceive an employer while
continuing to draw an existing salary” does not fall within the sweep
of the federal fraud statutes. 16 F.4th 256, 266 (9th Cir. 2021). 4
At the outset, we note that we previously considered identical
arguments in Stinn II. There, Stinn argued that the district court erred
when it held that a “salary raise and a bonus constitute money or
property in a traditional mirror-image fraud case” and “the
government did not rely on other forms of compensation (such as
salary maintenance) to prove the money/property element.” Brief for
Petitioner-Appellant, Stinn v. United States, No. 12-1930, at *36 (2d Cir.
Oct. 12, 2012). We rejected Stinn’s arguments then, see Stinn II, 515 F.
App’x at 5 (“We have considered all of Stinn’s arguments on appeal
and find them to be without merit.”), and we reject those same
arguments now.
The law-of-the-case doctrine “forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” United States
v. Frias, 521 F.3d 229, 234 (2d Cir. 2008) (internal quotation marks
omitted). Although there are narrow exceptions to the rule, they do
not apply here. Stinn has not pointed to the “availability of new
4
The D.C. Circuit declined to follow the Ninth Circuit’s approach in Yates.
See United States v. Guertin, 67 F.4th 445, 453 (D.C. Cir. 2023), abrogated on
other grounds by Kousisis v. United States, 605 U.S. 114, 145 (2025).
8
No. 25-293
evidence,” and the main “intervening change of controlling law” that
Stinn relies on (Ciminelli) did not concern whether salary raises and
bonuses are traditional property interests protected by the federal
fraud statutes. Id. at 235 n.6 (internal quotation marks omitted). Nor
do we find any “clear error” or “manifest injustice” in the district
court’s adherence to Stinn II. Id. (internal quotation marks omitted).
But even if we were to consider Stinn’s salary maintenance
arguments on the merits—and even assuming that salary
maintenance does not alone suffice to support a fraud conviction—
those arguments would still fail. 5 Stinn points to examples in the trial
record where the government referenced his “handsome salary” and
that he was “paid handsomely to honor” investors’ “trust” in him.
App’x at 924, 936. Based on these references, he argues that we should
infer that the jury’s verdict rested on the impermissible right-to-
control and salary-maintenance theories.
That inference is not supported by the trial record. “[A] court
should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting
through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.” Donnelly v. DeChristoforo,
416 U.S. 637, 647 (1974). The stray remarks that Stinn cites are
5
The Supreme Court’s recent decision in Kousisis endorsed the “fraudulent-
inducement” theory of federal fraud, which criminalizes schemes that
“trick a victim into . . . handing over her money or property” (regardless of
whether the victim receives “something in return”). 605 U.S. at 118. Under
this straightforward definition, lying so as to receive a salary would appear
to qualify as fraud. Furthermore, while Yates worried that such a flexible
conception would “criminalize a wide range of commonplace conduct,” 16
F.4th at 267, Kousisis explained that courts should “distinguish[] everyday
misstatements from actionable fraud” based on their materiality, 605 U.S. at
131—not on broad, categorical exceptions to otherwise clearly applicable
criminal statutes.
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No. 25-293
outweighed by the litany of the government’s references at trial to
Stinn’s bonus and salary raise. For example:
• App’x at 934 (“[T]he defendant’s yearly bonus at Friedman’s
was tied directly to Friedman’s making its earnings
expectation.”)
• App’x at 935 (“[A]s a result of hitting these earnings targets,
this defendant received [a] $352,000 bonus.”)
• App’x at 2061 (Stinn “rigged the mathematical equation that
gave him that 352,000 dollar bonus in 2002”); id. (“As a result
of the lies the defendant told, he got an ever-increasing salary
and an ever more generous compensation package of
bonuses . . . .”)
• App’x at 2073 (Stinn “insisted on the 10 percent to boost
reported earnings and not too coincidentally to secure his
bonus. That was intent to [commit] fraud.”)
• App’x at 2077 (Stinn was “looking for another big
bonus . . . [t]he reason he did it was because of his intent to
defraud”)
Two district judges have examined the voluminous trial record
and correctly concluded that “the record does not support th[e]
assertion” that “the government attempted to satisfy the money or
property element by showing that [the] petitioner maintained the
salary he was already receiving[.]” Stinn v. United States, 856 F. Supp.
2d 531, 543 (E.D.N.Y. 2012); Stinn, 2024 WL 4989241, at *6 (same). The
record is “replete with instances in which the government proffered
that [P]etitioner’s fraud resulted directly in his receiving a substantial
raise and bonus.” Stinn, 856 F. Supp. 2d at 543. Hence, Stinn’s case is
dissimilar to Yates, where the “prohibited” “[right-to-control] and
salary-maintenance theories” did “not make up just a few stray lines
on a PowerPoint slide at closing argument [but] were the focus of the
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entire prosecution from beginning to end.” Yates, 16 F.4th at 269
(internal quotation marks omitted).
In sum, we agree with the district court that the object of Stinn’s
fraud was his 2003 salary increase and 2002 bonus, not his pre-
existing salary. Under Yates, “a raise or a bonus” is covered by the
federal fraud statutes if the remuneration is “tied to some specific
performance metric,” and the employee “lies about having achieved
that metric.” Yates, 16 F.4th at 268. Stinn’s “rigg[ing] [of] the
mathematical equation” behind Friedman’s financial reports to “hit[]
. . . earnings target[s]” and “secure his bonus” easily meets that test.
App’x at 935, 2061.
II. Harmless Error
We next consider the issue of the Yates instructional error.
Under the Supreme Court’s Yates test (not to be confused with the
Ninth Circuit’s decision of the same name), a “verdict [is] to be set
aside in cases where the verdict is supportable on one ground, but not
on another, and it is impossible to tell which ground the jury
selected.” Yates, 354 U.S. at 312. Yates errors are “not structural and
are subject to harmlessness review.” Johnson v. United States, 144 F.4th
133, 142 (2d Cir. 2025).
The parties do not dispute that there is a Yates error. It is
“impossible to tell” from the jury’s general verdict whether the jurors
relied on the traditional fraud theory or right-to-control theory of
fraud liability. Yates, 354 U.S. at 312. But the parties disagree on
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whether that error was harmless, and also dispute which standard
would apply to determining harmless error on coram nobis petitions. 6
Stinn argues in favor of Chapman, 386 U.S. at 18, the standard
typically applied on direct review of constitutional errors. See
generally Brecht v. Abrahamson, 507 U.S. 619 (1993). Under the Chapman
standard, “before a federal constitutional error can be held harmless,”
the government must demonstrate that it was “harmless beyond a
reasonable doubt.” Chapman, 386 U.S. at 24. The government bears
the burden of proving that a Chapman error is harmless. See Brown v.
Davenport, 596 U.S. 118, 126 (2022).
The government argues in favor of the standard articulated in
Kotteakos, 328 U.S. at 776, which governs in habeas corpus review of
state convictions. See Brecht, 507 U.S. at 637. Under Kotteakos, the test
is whether the error had a “substantial and injurious effect or
influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776;
accord Johnson, 144 F.4th at 142. Unlike Chapman, the Kotteakos burden
of persuasion is for the petitioner to bear. See Brown, 596 U.S. at 126
(observing that Brecht, a case applying the Kotteakos standard,
“inverted Chapman’s burden”). 7
The choice between these two standards is a question of first
impression for our court. Neither the Supreme Court nor our court
6
The parties also disagree on whether the government has waived, or is
estopped from, asserting harmless error review. Stinn raised that exact
argument in Stinn II, which we rejected then, and thus the argument is
barred by the law-of-the-case doctrine.
7 There is language in Johnson suggesting that the burden under Kotteakos is
for the government to bear. See Johnson, 144 F.4th at 143 (“[U]nder both
Chapman and Kotteakos the government bears the burden of persuasion.”).
But the Johnson court held that the petitioner would have “prevail[ed] under
either standard.” Id. Hence, we regard that observation as dictum, “not
necessary to the holdings of the decisions in which they were made.” Cotto
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has “[]ever squarely stated which [of the two] standard[s] of
harmlessness review applies in coram nobis.” Johnson, 144 F.4th at
142. For the reasons stated below, we hold that Kotteakos is the proper
standard.
First, coram nobis is more akin to habeas than to direct review.
In Brecht v. Abrahamson, the Supreme Court considered whether to
apply Chapman or Kotteakos in cases of harmless error raised on a
habeas petition brought pursuant to 28 U.S.C. § 2254. 507 U.S. at 619.
The Court opted for the latter, reasoning that “[t]he Kotteakos standard
is . . . better tailored to the nature and purpose of collateral review,”
including the extraordinary nature of habeas relief, and the sovereign
and society’s interest in the finality of criminal sentences. Id. at 637-
38.
Those same considerations apply here. As with habeas, “a
petition for writ of error coram nobis is a collateral attack on a
criminal conviction,” granted only where “extraordinary
circumstances are present.” Foont v. United States, 93 F.3d 76, 78-79
(2d Cir. 1996) (internal quotation marks omitted). And like habeas,
coram nobis petitions are filed long after direct proceedings have
concluded, when the “erosion of memory and dispersion of witnesses
that accompany the passage of time” have occurred. Brecht, 507 U.S.
at 637 (internal quotation marks omitted). This “imbalance of costs
v. Herbert, 331 F.3d 217, 250 n.20 (2d Cir. 2003). Additionally, in a later
decision written by the author of Johnson, our court clarified that under
“Brecht [a Kotteakos case] . . . the burden is on the petitioner to show harm.”
Hernandez v. McIntosh, 146 F.4th 142, 163 (2d Cir. 2025), rev'd and remanded
on other grounds sub nom. McCarthy v. Hernandez, 146 S. Ct. 1873 (2026).
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and benefits counsels in favor of [applying] the less onerous Kotteakos
standard” in the coram nobis context. Id.
Faced with this chain of logic, Stinn attempts to distinguish
Brecht on the ground that it analyzed challenges to state convictions
under section 2254—not challenges to federal convictions under
section 2255. Stinn points to our opinion in Johnson, where we
explained, in dicta, that “the concerns about comity, federalism, and
state interests cited by [Brecht] for preferring Kotteakos in collateral
review are not present . . . [when] the Petitioner asks us to overturn a
federal conviction originating in this Circuit.” 144 F.4th at 143 (cited
in Reply Br. at 17-18). But Brecht itself did not draw so fine a line.
Instead, the Supreme Court (1) relied heavily on the “resound[ing]”
“principle that collateral review is different from direct review”;
(2) emphasized general principles of habeas jurisprudence (both
federal and state)—including that “[r]etrying defendants whose
convictions are set aside . . . imposes significant social costs”; and
(3) expressly applied parts of its rationale to “federal [and] state” trial
courts, both of which are responsible for “fully performing their
sworn duty” in criminal proceedings. Brecht, 507 U.S. at 633–37
(internal quotation marks omitted). Brecht also invoked the
importance of finality—an interest that matters just as much for
federal convictions as for state ones. Id. at 635; see United States v.
Frady, 456 U.S. 152, 166 (1982) (“[T]he Federal Government, no less
than the States, has an interest in the finality of its criminal
judgments.”). 8
8 We also note that while we have “not yet” formally “decided what
harmless error standard applies in the context of a [section] 2255
proceeding” (as opposed to a section 2254 proceeding), Tavarez v. United
States, 81 F.4th 234, 240 n.8 (2d Cir. 2023), we have, in practice, repeatedly
turned to Kotteakos in section 2255 cases, see Colotti, 71 F.4th at 115–16
(applying Kotteakos standard); Stone, 37 F.4th at 829 (same). Our practice
accords with the consensus of nearly every other circuit court that has
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Second, and reinforcing this conclusion, the consequences from
the denial of coram nobis are less severe for the petitioner than those
from the denial of a habeas petition. In a coram nobis petition “the
only consequences still being inflicted, namely, civil disabilities and
moral stigma,” are “considerably less severe than continued
imprisonment.” United States v. Keogh, 440 F.2d 737, 741 (2d Cir. 1971)
(Friendly, J.). It makes little sense to impose a more onerous standard
for coram nobis petitions, which by definition do not involve
incarcerated petitioners, than for habeas petitions.
Third, the practical “unlikelihood of a new trial” after a grant
of coram nobis also counsels in favor of the Kotteakos standard. United
States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). Unlike in habeas,
petitioners seek coram nobis after they have already completed their
sentence. Thus, although retrial is theoretically possible, the likely
“consequence[] of granting a writ of coram nobis . . . would be to
expunge [a sentence] without possibility of reinstatement[.]”
Mandanici, 205 F.3d at 532 (Kearse, J., concurring). Before obtaining
such irreversible relief, a coram nobis petitioner should be required to
clear at least as rigorous a bar as would a petitioner seeking habeas
relief.
Finally, adopting Stinn’s proposed test would undercut the
higher bar Brecht erected for habeas review, and create a perverse
incentive for delay. Suppose a petitioner serving the final year of his
sentence files a habeas petition that is denied under the Kotteakos
standard. He then waits one year and files a coram nobis petition
considered whether the Brecht/Kotteakos standard applies in the section 2255
context. See United States v. Bentley, 49 F.4th 275, 289 n.9 (3d Cir. 2022)
(joining the Fourth and Eighth Circuits in extending Brecht to section 2255
cases); United States v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (same, joining
the Sixth, Ninth, Tenth, and Eleventh Circuits, and observing that the
Seventh Circuit is the sole outlier).
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No. 25-293
asserting the same constitutional error, under the more-relaxed
Chapman standard. Should he now gain the benefit of a more lenient
standard, simply because he waited out the clock? We think not.
In sum, we hold that a petitioner seeking coram nobis relief
must demonstrate that the error had a “substantial and injurious
effect or influence in determining the jury's verdict.” Kotteakos, 328
U.S. at 776. The burden of persuasion is on the petitioner. See Brown,
596 U.S. at 126. And to evaluate whether a petitioner has satisfied that
burden, the district court must consider whether a “properly
instructed jury would have found” the petitioner guilty, absent the
invalid jury instruction. Colotti v. United States, 71 F.4th 102, 119 (2d
Cir. 2023) (applying the “properly instructed jury” test in the habeas
context); Stone v. United States, 37 F.4th 825, 832 (2d Cir. 2022) (same).
In an effort to reframe this test, Stinn points to an aside in
Johnson, where we mused—without citing any supporting
authority—that “[t]he question” under Kotteakos “is not whether a
jury could have or even would have convicted [the defendant] if
presented only with a [valid] theory of fraud,” but “rather, whether
[the defendant’s] jury did convict him on that basis.” Johnson, 144
F.4th at 145. But Johnson never actually relied on the distinction
between what the jury did and what it would have done. On the
contrary, the panel repeatedly analyzed whether the jury “would have
found” the defendant guilty had it been properly instructed. 144 F.4th
at 145 (emphasis added); see also id. at 143, 146. The throwaway line
that Stinn quotes is thus textbook dicta. See Barclays Cap. Inc. v.
Theflyonthewall.com, Inc., 650 F.3d 876, 899 (2d Cir. 2011)
(“[S]ubsequent appellate panels are required to follow only . . .
previous appellate legal holdings.” (internal quotation marks
omitted)).
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And there is good reason to disregard that dicta here. As we
have repeatedly explained—including in the context of Yates errors—
“we will find [an] error harmless when the jury would have found” the
defendant guilty if properly instructed. Gomez v. United States, 87
F.4th 100, 107 (2d Cir. 2023) (internal quotation marks omitted and
emphasis added); Colotti, 71 F. 4th at 116 (same); Stone, 37 F.4th at 832
(same); Peck v. United States, 106 F.3d 450, 457 (2d Cir. 1997) (same).
Because, as Johnson itself noted, the entire premise of a Yates error is
that the reviewing court “cannot determine upon which basis the jury
convicted,” 144 F.4th at 142 (emphasis added), Stinn’s reading of
Johnson would, in effect, mean that a Yates error could never be
harmless, since the standard itself would require the court to
determine that the “jury did convict” on a legally permissible theory.
Id. at 145. That is clearly an untenable position that finds no support
in our caselaw.
Applying Kotteakos’s “would-have-found” test here, we find
that Stinn has failed to meet his burden. The government presented
ample evidence that the objective of Stinn’s scheme was his $350,000
salary raise and $352,000 bonus. See supra op. n.3. The jury
considered that evidence and returned not only a guilty verdict, but
also a forfeiture verdict including the bonus and salary raise. See 18
U.S.C. § 981 (subjecting to forfeiture “[a]ny property, real or personal,
which constitutes or is derived from proceeds traceable to a violation
of” mail, wire, and securities fraud statutes). On this record, there can
be no doubt that a properly instructed jury, without recourse to the
right-to-control instruction, would have found the evidence of Stinn’s
salary raise and bonus sufficient to convict Stinn under the traditional
fraud theory. Thus, it was no abuse of discretion for the district court
to deny Stinn’s coram nobis petition.
17
No. 25-293
CONCLUSION
We have evaluated Stinn’s remaining arguments and find them
to be without merit. For the reasons stated above, we AFFIRM the
judgment of the district court.
18