Ciminelli v. United States

(Slip Opinion) OCTOBER TERM, 2022 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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 in-

volvement in a scheme to rig the bid process for obtaining state-funded

development projects associated with then-New York Governor An-

drew Cuomo’s Buffalo Billion initiative. The Buffalo Billion initiative

was administered by the nonprofit Fort Schuyler Management Corpo-

ration. 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

prominent role in administering projects for Buffalo Billion. Ci-

minelli’s 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 LPCiminelli to receive

major Buffalo Billion contracts by designating LPCiminelli as a “pre-

ferred developer” with priority status to negotiate for specific projects.

Kaloyeros, Howe, and Ciminelli jointly developed a set of requests for

proposal (RFPs) that effectively guaranteed LPCiminelli’s selection as

a preferred developer by treating unique aspects of LPCiminelli as

qualifications for preferred-developer status. With that status in

hand, LPCiminelli secured the marquee $750 million “Riverbend pro-

ject” in Buffalo. After the scheme was uncovered, Ciminelli, Kaloyeros,

Howe, and others were indicted for, as relevant here, wire fraud in vi-

olation 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, un-

der which the Government can establish wire fraud by showing that

2 CIMINELLI v. UNITED STATES

Syllabus

the defendant schemed to deprive a victim of potentially valuable eco-

nomic information necessary to make discretionary economic deci-

sions. Consistent 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 depriving Fort Schuyler of “potentially valuable economic

information.” The jury convicted Ciminelli of wire fraud and conspir-

acy to commit wire fraud. On appeal, Ciminelli argued that the right

to control one’s assets is not “property” for purposes of §1343. The Sec-

ond Circuit affirmed 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 in-

terest, the Second Circuit’s right-to-control theory cannot form the ba-

sis for a conviction under the federal fraud statutes. Pp. 4–10.

(a) The federal wire fraud statute criminalizes the use of interstate

wires for “any scheme or artifice 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 artifice 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 confined

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 stat-

utes. Congress responded to this Court’s decision in McNally by en-

acting §1346, which revived only the intangible right of honest ser-

vices, one of many intangible rights protected by courts under the

fraud statutes pre-McNally. Congress’ silence regarding other such

intangible interests forecloses the judicial expansion of the wire fraud

statute to cover the intangible right to control. Finally, by treating

Cite as: 598 U. S. ____ (2023) 3

Syllabus

mere information as the protected interest, the right-to-control theory

vastly expands federal jurisdiction to an almost limitless variety of de-

ceptive actions traditionally left to State law. Pp. 4–9.

(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 affirm Ciminelli’s convic-

tions by 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 func-

tion of a court of first view, but also of a jury. See McCormick v. United

States, 500 U. S. 257, 270–271, n. 8. Pp. 9–10.

13 F. 4th 158, reversed and remanded.

THOMAS, J., delivered the opinion for a unanimous Court. ALITO, J.,

filed a concurring opinion.

Cite as: 598 U. S. ____ (2023) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers 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.

SUPREME COURT OF THE UNITED STATES

_________________

No. 21–1170

_________________

LOUIS CIMINELLI, PETITIONER v.

UNITED STATES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[May 11, 2023]

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 artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, repre-

sentations, 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

economic information” “necessary to make discretionary

economic decisions.” United States v. Percoco, 13 F. 4th

158, 170 (CA2 2021) (internal quotation marks omitted).

Petitioner Louis Ciminelli was charged with, tried for, and

convicted of wire fraud under this theory. And the Second

Circuit affirmed 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-

2 CIMINELLI v. UNITED STATES

Opinion of the Court

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 lia-

bility under §1343. Accordingly, we reverse the Second Cir-

cuit’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 nonprofit affiliated with the State Univer-

sity of New York (SUNY) and the SUNY Research Founda-

tion. It aimed to invest $1 billion in development projects

in upstate New York. Later investigations, however, un-

covered a wide-ranging scheme that involved several of for-

mer Governor Cuomo’s associates, most notably Alain Kalo-

yeros and Todd Howe. Kaloyeros was a member of Fort

Schuyler’s board of directors and was in charge of develop-

ing project proposals for Buffalo Billion; Howe was a lobby-

ist who had deep ties to the Cuomo administration. Each

month, Kaloyeros paid Howe $25,000 in state funds to en-

sure that the Cuomo administration gave Kaloyeros a

prominent position in Buffalo Billion.

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

LPCiminelli to receive major Buffalo Billion contracts.

First, on Kaloyeros’ suggestion, Fort Schuyler established a

process for selecting “preferred developers” that would be

given the first opportunity to negotiate with Fort Schuyler

for specific projects. Then, Kaloyeros, Howe, and Ciminelli

jointly developed a set of requests for proposal (RFPs) that

treated unique aspects of LPCiminelli as qualifications for

Cite as: 598 U. S. ____ (2023) 3

Opinion of the Court

preferred-developer status. Those RFPs effectively guaran-

teed that LPCiminelli would be (and was) selected as a pre-

ferred 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 fed-

eral 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 con-

trol” theory, under which the Government can establish

wire fraud by showing that the defendant schemed to de-

prive 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 ex-

clude certain defense evidence as irrelevant to that theory.

The Government also relied on that theory in its summa-

tion 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

——————

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

denying the motion to dismiss. United States v. Percoco, 2017 WL

6314146, *8 (SDNY, Dec. 11, 2017).

4 CIMINELLI v. UNITED STATES

Opinion of the Court

its assets if Fort Schuyler was “deprived of potentially val-

uable economic information that it would consider valuable

in deciding how to use its assets.” Ibid. The District Court

further defined “economically valuable information” as “in-

formation that affects the victim’s assessment of the bene-

fits or burdens of a transaction, or relates to the quality of

goods or services received or the economic risks of the trans-

action.” 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 affirmed

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 poten-

tially valuable economic information.” 13 F. 4th, at 171 (in-

ternal quotation marks omitted).

We granted certiorari to determine whether the Second

Circuit’s right-to-control theory of wire fraud is a valid basis

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 arti-

fice[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 artifice to de-

fraud” element because the “common understanding” of the

words “to defraud” when the statute was enacted referred

Cite as: 598 U. S. ____ (2023) 5

Opinion of the Court

“to wronging one in his property rights.” Cleveland, 531

U. S., at 19 (internal quotation marks omitted).2 This un-

derstanding reflects 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 policymak-

ing.” Kelly v. United States, 590 U. S. ___, ___ (2020) (slip

op., at 12). Instead, these statutes “protec[t] property rights

only.” Cleveland, 531 U. S., at 19. Accordingly, the Gov-

ernment 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 ___ (slip op.,

at 7) (alterations omitted).

Despite these limitations, lower federal courts for dec-

ades interpreted the mail and wire fraud statutes to protect

intangible interests unconnected to traditional property

rights. See Skilling v. United States, 561 U. S. 358, 400

(2010) (recounting how “the Courts of Appeals, one after an-

other, interpreted the term ‘scheme or artifice to defraud’ to

include 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

omitted); 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 con-

fining the federal fraud statutes to their original station,

the “protect[ion of] individual property rights.” Id., at 359,

n. 8. Congress then amended the fraud statutes “specifi-

cally to cover one of the ‘intangible rights’ that lower courts

——————

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).

6 CIMINELLI v. UNITED STATES

Opinion of the Court

had protected under [the statutes] prior to McNally: ‘the in-

tangible right of honest services.’ ” Cleveland, 531 U. S., at

19–20 (quoting 18 U. S. C. §1346).

The right-to-control theory applied below first arose after

McNally prevented the Government from basing federal

fraud convictions on harms to intangible interests uncon-

nected 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 defining feature of

most property is the right to control the asset in question,”

“the property interests protected by the wire fraud statute

include 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 omit-

ted).3

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 in-

terest that had “long been recognized as property” when the

wire fraud statute was enacted. Carpenter v. United States,

484 U. S. 19, 26 (1987). Significantly, when the Second Cir-

cuit first 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

——————

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

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).

Cite as: 598 U. S. ____ (2023) 7

Opinion of the Court

cite no authority that established “potentially valuable eco-

nomic information” as a traditionally recognized property

interest. See Wallach, 935 F. 2d, at 462–463.4 And, the

Second Circuit has not since attempted to ground the right-

to-control theory in traditional property notions. We have

consistently 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 in-

formed decisions about the disposition of one’s assets, with-

out more, were treated as the sort of ‘property’ giving rise

to wire fraud, it would risk expanding the federal fraud

statutes beyond property fraud as defined at common law

and as Congress 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.

——————

4 The only judicial authority the Second Circuit cited for this key prop-

osition was a 1989 Fifth Circuit opinion that conclusorily asserted that

“[t]he economic value of . . . knowledge” was “sufficient ‘property’ to im-

plicate” 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 in-

formed economic decisions, while perhaps useful for protecting and mak-

ing use of one’s property, has not itself traditionally been recognized as

a property interest.

8 CIMINELLI v. UNITED STATES

Opinion of the Court

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

responded by enacting §1346, which—despite the wide ar-

ray 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]

intangible interests” forecloses the expansion of the wire

fraud statute 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) (affirming

right-to-control conviction based on an employee’s undis-

closed conflict 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 flat contra-

diction with our caution that, “[a]bsent [a] clear statement

by 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.”

Cleveland, 531 U. S., at 27. And, as it did below, the Second

Circuit has employed the theory to affirm federal convic-

tions regulating the ethics (or lack thereof ) of state employ-

ees and contractors—despite our admonition that “[f]ederal

prosecutors may not use property fraud statutes to set

standards of disclosure and good government for state and

local officials.” Kelly, 590 U. S., at ___ (slip op., at 12) (al-

terations omitted). The right-to-control theory thus crimi-

nalizes traditionally civil matters and federalizes tradition-

ally state matters.

Cite as: 598 U. S. ____ (2023) 9

Opinion of the Court

In sum, the wire fraud statute reaches only traditional

property interests. The right to valuable economic infor-

mation 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 un-

der the federal fraud statutes.

B

Despite indicting, obtaining convictions, and prevailing

on appeal based solely on the right-to-control theory, the

Government now concedes that the theory as articulated

below is erroneous. Brief for United States 24–26. The

Government frankly admits that, “to the extent that lan-

guage in the [Second Circuit’s] opinions might suggest that

depriving a victim of economically valuable information,

without more, necessarily qualifies 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 affirm Ciminelli’s convic-

tions on the alternative ground that the evidence was suffi-

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

and apply them to the elements of a different wire fraud

theory in the first instance. In other words, the Govern-

ment asks us to assume not only the function of a court of

first 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 affirm convic-

tions on any theory they please simply because the facts

necessary to support the theory were presented to the

jury”); Chiarella v. United States, 445 U. S. 222, 236 (1980).

Accordingly, we decline the Government’s request to affirm

Ciminelli’s convictions on alternative grounds.

10 CIMINELLI v. UNITED STATES

Opinion of the Court

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.

Cite as: 598 U. S. ____ (2023) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 21–1170

_________________

LOUIS CIMINELLI, PETITIONER v.

UNITED STATES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[May 11, 2023]

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 er-

ror, unless harmless, requires the reversal of the judgment

below. I do not understand the Court’s opinion to address

fact-specific 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 sufficiency, see

United States v. Miller, 471 U. S. 130, 134–135 (1985) (var-

iance from indictment did not make indictment insuffi-

cient); (3) the applicability 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 Government’s ability to retry petitioner on the the-

ory that he conspired to obtain, and did in fact obtain, by

fraud, a traditional form of property, viz., valuable con-

tracts. On this understanding, I join the Court’s opinion.