Petition for Writ of Certiorari — James Vorley, Petitioner v. United States
Supreme Court briefOct 27, 2022
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No. _____
In the
Supreme Court of the United States
________________
JAMES VORLEY,
v.
Petitioner,
UNITED STATES OF AMERICA,
________________
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
________________
PETITION FOR A WRIT OF CERTIORARI
________________
ROGER A. BURLINGAME
STEVEN A. ENGEL
MATTHEW L. MAZUR
MICHAEL H. MCGINLEY
Counsel of Record
DECHERT LLP
160 Queen Victoria Street JUSTIN W. AIMONETTI
DECHERT LLP
London, UK EC4V 4QQ
1900 K Street, NW
Washington, DC 20006
michael.mcginley@dechert.com
(202) 261-3300
Counsel for Petitioner
October 27, 2022
i
QUESTIONS PRESENTED
The questions presented are:
1. Whether, as the Seventh and Ninth Circuits
hold, a “scheme or artifice to defraud” under the wire
fraud statute, 18 U.S.C. § 1343, encompasses an
“implied misrepresentation,” or whether, as the
Second, Sixth, and Eleventh Circuits hold, the wire
fraud statute requires an express statement that is
either false or misleading?
2. Whether, as the Seventh Circuit holds, a
district court may cure a Speedy Trial Act violation
by making an after-the-fact finding that the ends of
justice outweigh the interests of the criminal
defendant and the public for a speedy trial, 18 U.S.C.
§ 3161(h)(7), or whether, as the Second, Fifth, Sixth,
Eighth, Ninth, and Tenth Circuits hold, a district
court must make the ends-of-justice finding at the
time that it grants the continuance?
ii
PARTIES TO THE PROCEEDING
Petitioner James Vorley was a defendant
before the U.S. District Court for the Northern
District of Illinois and an appellant before the U.S.
Court of Appeals for the Seventh Circuit. Cedric
Chanu was also a defendant before the U.S. District
Court for the Northern District of Illinois and an
appellant before the U.S. Court of Appeals for the
Seventh Circuit. Mr. Chanu intends to file his own
petition for a writ of certiorari.
Respondent the United States of America was
the prosecution before the U.S. District Court for the
Northern District of Illinois and the appellee before
the U.S. Court of Appeals for the Seventh Circuit.
iii
RELATED PROCEEDINGS
This case arises from the following proceedings:
United States District Court (N.D. Ill.):
•
United States v. Vorley, No. 18 CR 00035 (Oct.
21, 2019)
•
United States v. Vorley, No. 18 CR 00035 (July
21, 2020)
•
United States v. Vorley, No. 18 CR 00035
(March 18, 2021)
United States Court of Appeals (7th Cir.):
•
United States v. Chanu, No. 21-2242, 21-2251,
21-2666 (July 6, 2022)
•
United States v. Chanu, No. 21-2242, 21-2251,
21-2666 (Aug. 4, 2022) (order denying petition
for rehearing en banc)
There are no additional proceedings in any court that
are directly related to this case within the meaning of
this Court’s Rule 14(b)(iii).
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES .................................... viii
PETITION FOR A WRIT OF CERTIORARI.............. 1
OPINIONS BELOW .................................................... 5
JURISDICTION .......................................................... 6
STATUTORY PROVISIONS INVOLVED.................. 6
STATEMENT OF THE CASE .................................... 6
A. Statutory Background .................................... 6
B. District Court Proceedings ........................... 10
C. The Decision Below....................................... 13
REASONS FOR GRANTING THE PETITION........ 15
I.
This Court Should Grant Review To Resolve
A Circuit Split Over The Evidence Required
To Support A Conviction Under The Wire
Fraud Statute ...................................................... 15
A. The Circuits Are Divided on This
Question ........................................................ 15
B. The Decision Below Was Incorrect .............. 20
C. This
Question
is
Exceptionally
Important and This Case Presents an
Ideal Vehicle to Resolve it ............................ 24
v
II. This Court Should Grant Review To Resolve
A Circuit Split Over Whether An Ends-ofJustice Determination Must Be Made At
The Time Of A Continuance ............................... 26
A. The Circuits Are Divided on This
Question ........................................................ 26
B. The Decision Below Was Incorrect .............. 33
C. This
Question
is
Exceptionally
Important and This Case Presents an
Ideal Vehicle to Resolve it ............................ 35
CONCLUSION .......................................................... 37
APPENDIX
Appendix A
Opinion in the United States Court of Appeals
for
the
Seventh
Circuit
(July 6, 2022) ...................................................... App. 1
Appendix B
Order Denying Rehearing in the United States
Court of Appeals for the Seventh Circuit
(August 4, 2022)................................................ App. 39
Appendix C
Judgment in a Criminal Case in the United
States District Court Northern District of
Illinois
(June 30, 2021) ................................................. App. 41
Appendix D
Memorandum Opinion and Order in the United
States District Court for the Northern District
of
Illinois
Eastern
Division
(March 18, 2021) ............................................... App. 49
vi
Appendix E
Order in the United States District Court for
the Northern District of Illinois Eastern
Division
(July 21, 2020) ................................................ App. 151
Appendix F
Superseding Indictment in the United States
District Court for the Northern District of
Illinois
Eastern
Division
(November 26, 2019)....................................... App. 171
Appendix G
Memorandum Opinion and Order in the United
States District Court for the Northern District
of
Illinois
Eastern
Division
(October 21, 2019)........................................... App. 188
Appendix H
Transcript of Proceedings in the United States
District Court for the Northern District of
Illinois
Eastern
Division
(January 25, 2019) .......................................... App. 238
Appendix I
Docket Entry 120 - Minute Entry in the United
States District Court for the Northern District
of
Illinois
Eastern
Division
(October 31, 2019)........................................... App. 289
Appendix J
Docket Entry 73 - Minute Entry in the United
States District Court for the Northern District
of
Illinois
Eastern
Division
(November 15, 2018)....................................... App. 290
vii
Appendix K
Transcript of Proceedings in the United States
District Court for the Northern District of
Illinois
Eastern
Division
(November 15, 2018)....................................... App. 291
Appendix L
Indictment in the United States District Court
for the Northern District of Illinois Eastern
Division
(July 24, 2018) ................................................ App. 303
Appendix M
Statutory Provisions Involved........................ App. 316
viii
TABLE OF AUTHORITIES
Cases
Bender v. Southland Corp.,
749 F.2d 1205 (6th Cir. 1984) ................................ 19
Bloate v. United States,
559 U.S. 196 (2010) .................................................. 9
Blount Financial Services, Inc. v. Walter E. Heller
and Co., 819 F.2d 151 (6th Cir. 1987) ............... 2, 20
Ciminelli v. United States,
142 S. Ct. 2901 (2022) .................................. 1, 18, 25
Cleveland v. United States,
531 U.S. 12 (2000) .................................................. 24
Henderson v. United States,
476 U.S. 321 (1986) .................................................. 9
Kelly v. United States,
140 S. Ct. 1565 (2020) ........................................ 1, 25
Lustiger v. United States,
386 F.2d 132 (9th Cir. 1967) .................................. 17
Marinello v. United States,
138 S. Ct. 1101 (2018) ............................................ 24
Neder v. United States,
527 U.S. 1 (1999) .............................................. 21, 22
Pasquantino v. United States,
544 U.S. 349 (2005) ................................................ 23
Skilling v. United States,
561 U.S. 358 (2010) .................................................. 1
Smith v. Goguen,
415 U.S. 566 (1974) ................................................ 24
ix
Sorich v. United States,
555 U.S. 1204 (2009) .......................................... 3, 24
U.S. ex rel. O’Donnell v. Countrywide Home
Loans, Inc., 822 F.3d 650 (2d Cir. 2016) ............... 20
United States v. Adams,
625 F.3d 371 (7th Cir. 2010) ........................ 4, 14, 33
United States v. Apperson,
441 F.3d 1162 (10th Cir. 2006) .................. 27, 29, 34
United States v. Bohonus,
628 F.2d 1167 (9th Cir. 1980) ............................ 2, 17
United States v. Connolly,
24 F.4th 821 (2d Cir. 2022) ................................ 2, 17
United States v. Crane,
776 F.2d 600 (6th Cir. 1985) .................................. 31
United States v. Frey,
735 F.2d 350 (9th Cir. 1984) .............................. 5, 30
United States v. Johnson,
120 F.3d 1107 (10th Cir. 1997) .............................. 30
United States v. Jones,
56 F.3d 581 (5th Cir. 1995) ................................ 4, 28
United States v. Kelly,
45 F.3d 45 (2d Cir. 1995) ................................... 4, 30
United States v. Koerber,
813 F.3d 1262 (10th Cir. 2016) .............................. 29
United States v. Kurlemann,
736 F.3d 439 (6th Cir. 2013) .................................. 22
United States v. Larson,
417 F.3d 741 (7th Cir. 2005) .............................. 4, 33
x
United States v. Marquez,
602 F. Supp. 2d 285 (D. Mass. 2009) ..................... 27
United States v. Moran,
998 F.2d 1368 (6th Cir. 1993) ............................ 4, 31
United States v. Munoz,
233 F.3d 1117 (9th Cir. 2000) .................................. 2
United States v. Namvar,
498 F. App’x 749 (9th Cir. 2012)............................ 17
United States v. Pikus,
39 F.4th 39 (2d Cir. 2022) ...................................... 30
United States v. Radley,
659 F. Supp. 2d 803 (S.D. Tex. 2009) ...................... 8
United States v. Rollins,
544 F.3d 820 (7th Cir. 2008) .............................. 4, 33
United States v. Shellef,
507 F.3d 82 (2d Cir. 2007) ..................................... 18
United States v. Spanier,
637 F. App’x 998 (9th Cir. 2016)...................... 30, 31
United States v. Suarez-Perez,
484 F.3d 537 (8th Cir. 2007) .............................. 4, 28
United States v. Takhalov,
827 F.3d 1307 (11th Cir. 2016) .................... 2, 19, 21
United States v. Taylor,
487 U.S. 326 (1988) ................................................ 10
United States v. Tinklenberg,
563 U.S. 647 (2011) ................................................ 26
United States v. Tunnessen,
763 F.2d 74 (2d Cir. 1985) ..................................... 30
xi
United States v. Wedd,
993 F.3d 104 (2d Cir. 2021) ..................................... 7
United States v. Williams,
511 F.3d 1044 (10th Cir. 2007) .......................... 5, 29
United States v. Woods,
335 F.3d 993 (9th Cir. 2003) .................................. 17
Universal Health Servs., Inc. v. United States,
579 U.S. 176 (2016) ................................................ 20
Walters v. First Tennessee Bank, N.A. Memphis,
855 F.2d 267 (6th Cir. 1988) .................................. 20
Williams v. United States,
458 U.S. 279 (1982) ................................................ 22
Zedner v. United States,
547 U.S. 489 (2006) ............................................ 4, 34
Statutes
7 U.S.C. § 6c(a)(5)(C) ............................................... 1, 6
18 U.S.C. § 1014 ........................................................ 22
18 U.S.C. § 1343 .......................................... 1, 6, 11, 20
18 U.S.C. § 1349 ........................................................ 11
18 U.S.C. § 3161 ........................................................ 26
18 U.S.C. § 3161(c)(1) .............................................. 4, 8
18 U.S.C. § 3161(h) .................................................... 26
18 U.S.C. § 3161(h)(1)(D) ...................... 3, 9, 11, 31, 32
18 U.S.C. § 3161(h)(1)(H) ............................ 3, 9, 12, 32
18 U.S.C. § 3161(h)(6) ................................................. 9
18 U.S.C. § 3161(h)(7) ..................................... 9, 13, 32
xii
18 U.S.C. § 3161(h)(7)(A)................................... passim
18 U.S.C. § 3161(h)(7)(B)................................. 9, 27, 34
18 U.S.C. § 3161(h)(7)(C)........................................... 27
18 U.S.C. § 3161(h)(8) ................................................. 9
18 U.S.C. § 3162(a)(2) ................................................ 10
18 U.S.C. § 3293(2) ...................................................... 6
28 U.S.C. § 1254(1) ...................................................... 6
28 U.S.C. § 2462 ...................................................... 6, 8
Other Authorities
Br. of Appellants, United States v. Vorley, No.
21-2242 (filed Oct. 15, 2021) .................................. 13
Br. of United States, United States v. Chanu,
No. 21-2242 (filed Dec. 17, 2021) ............................. 1
Brian P. Brooks, A New Speedy Trial Standard
for Barker v. Wingo: Reviving a Constitutional
Remedy in an Age of Statutes, 61 U. Chi. L.
Rev. 587 (1994) ....................................................... 35
Susan R. Klein & Ingrid B. Grobey, Debunking
Claims of over–Federalization of Criminal
Law, 62 Emory L.J. 1 (2012) ................................. 25
Gideon Mark, Spoofing and Layering, 45 J.
Corp. L. 399 (2020)............................................... 7, 8
Jerry W. Markham, LAW ENFORCEMENT AND THE
HISTORY
OF
FINANCIAL
MARKET
MANIPULATION (M.E. Sharpe 2014)......................... 7
Mot. to Dismiss, United States v. Vorley, No. 18cr-35 (N.D. Ill. Nov. 15, 2018).............. 11, 12, 13, 31
xiii
Restatement (Second) of Torts § 529 (1976) ............. 21
Kevin Rodgers, WHY AREN’T THEY SHOUTING?
(2016) ........................................................................ 8
S. Rep. No. 212, 96th Cong., 1st Sess. 9 (1979) .... 9, 35
John I. Sanders, Spoofing: A Proposal for
Normalizing
Divergent
Securities
and
Commodities Futures Regimes, 51 Wake
Forest L. Rev. 517 (2016) ......................................... 7
1
PETITION FOR A WRIT OF CERTIORARI
This case presents two important questions that
have divided the circuits and warrant this Court’s
review.
First, this case presents yet another expansion of
the fraud statutes that threatens to criminalize
virtually any conduct that a prosecutor deems
deceptive or dishonest. See Ciminelli v. United
States, 142 S. Ct. 2901 (2022); Kelly v. United States,
140 S. Ct. 1565, 1574 (2020); Skilling v. United
States, 561 U.S. 358 (2010). The wire fraud statute
criminalizes the use of wire communications to effect
“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. Under the government’s latest theory, a
“scheme or artifice to defraud” encompasses “implied
misrepresentations,” including the act of “spoofing,”
which is a trading practice defined in the DoddFrank Wall Street Reform and Consumer Protection
Act of 2010 as “bidding or offering with the intent to
cancel the bid or offer before execution.” 7 U.S.C.
§ 6c(a)(5)(C).
In proceedings below, the government prosecuted
two precious metals traders for wire fraud on the
theory that every bid or offer made on an exchange
for a commodity futures contract “impliedly
represented” a “good-faith intent to trade.” Br. of
United States, United States v. Chanu, No. 21-2242
at 1 (filed Dec. 17, 2021). Under the government’s
theory, a trader who secretly hopes to cancel a bid
commits criminal fraud against other traders, even if
the trader is willing and able to honor every bid or
2
offer.
Id.
The Seventh Circuit endorsed the
government’s “implied misrepresentation” theory,
whereby a defendant can be convicted of wire fraud
without evidence of an express false statement or the
omission of a material fact that makes an express
statement misleading.
The decision below exacerbates a circuit split on
the question whether a “scheme to defraud” requires
an express false statement or a material omission of
fact. Like the Seventh Circuit, the Ninth Circuit has
held that the government need not prove that
defendants made “any specific false statements.”
United States v. Munoz, 233 F.3d 1117, 1131 (9th Cir.
2000). All the government must prove is that the
defendant engaged in a scheme to obtain another’s
property and harbored a “specific intent” to mislead.
United States v. Bohonus, 628 F.2d 1167, 1172 (9th
Cir. 1980).
Other circuits have taken a conflicting approach,
requiring evidence of an express false statement or
omission of a material fact. In the Second Circuit,
the government must introduce evidence of an
objectively “false, fraudulent, or misleading”
representation to secure a wire fraud conviction.
United States v. Connolly, 24 F.4th 821, 843 (2d Cir.
2022). In the Sixth Circuit, a “scheme to defraud”
must involve a “false statement of fact.” Blount
Financial Services, Inc. v. Walter E. Heller and Co.,
819 F.2d 151, 152 (6th Cir. 1987). And the Eleventh
Circuit likewise requires “lies about the nature of the
bargain itself.” United States v. Takhalov, 827 F.3d
1307, 1313 (11th Cir. 2016).
3
This is an ideal case to resolve this important
issue. Federal prosecutors invoke the fraud statutes
“to impose criminal penalties upon a staggeringly
broad swath of behavior.” Sorich v. United States,
555 U.S. 1204, 1204 (2009) (Scalia, J., dissenting
from denial of certiorari).
Without the Court’s
intercession, individuals will lack fair notice about
what conduct triggers criminal liability, and federal
criminal law will vary depending on where the
government elects to indict. And this case cleanly
presents the question: Petitioner’s wire fraud
conviction rests on the theory that he impliedly
misrepresented his “good faith intent to trade,”
without evidence that he misrepresented any
essential element of the bargain. The theory that a
“scheme to defraud” encompasses any form of
arguably deceptive conduct that could be described as
an “implied misrepresentation” is incompatible with
this Court’s precedents and warrants review.
Second, the decision below entrenches an
additional circuit split on the proper application of
the Speedy Trial Act.
In the district court,
Petitioner’s motion to dismiss the indictment
triggered an automatic exclusion of time under the
Act, which lasted up to 30 days after the district
court took the motion “under advisement” at the
conclusion of briefing. 18 U.S.C. §§ 3161(h)(1)(D),
(H).
Although the district court stated that it
expected to rule “promptly,” it did not decide the
motion until almost a year after its filing, which was
more than 180 days after the conclusion of briefing.
Pet.App.286. Because more than 70 days of nonexcluded time had elapsed, the statute required that
the indictment be dismissed on Petitioner’s motion.
4
18 U.S.C. § 3161(c)(1) (establishing a 70-day
requirement); Zedner v. United States, 547 U.S. 489,
501 (2006) (holding that harmless error analysis does
not apply to violations of the Speedy Trial Act given
the Act’s constitutional roots).
Instead,
while
conceding
that
it
had
“misconstrued” the duration of the statutory
exclusions of time, Pet.App.161, the district court
denied Petitioner’s speedy trial motion. The district
court stated that, if it had realized its error, it would
have excluded time under a separate subcategory of
the Act, which allows courts to grant a continuance
“on the basis of his findings that the ends of justice
served by taking such action outweigh the best
interest of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(7)(A). The district court
relied on a long line of Seventh Circuit precedents to
conclude that it could make this sort of after-the-fact
ends-of-justice finding. Pet.App.157; United States v.
Adams, 625 F.3d 371 (7th Cir. 2010); United States v.
Rollins, 544 F.3d 820 (7th Cir. 2008); United States v.
Larson, 417 F.3d 741 (7th Cir. 2005). And the
Seventh Circuit affirmed.
By endorsing the district court’s after-the-fact
ends-of-justice findings, the Seventh Circuit further
entrenched a circuit split. The Second, Fifth, Sixth,
Eighth, Ninth, and Tenth Circuits all prohibit
retroactive findings made in support of a previously
granted continuance. United States v. Kelly, 45 F.3d
45 (2d Cir. 1995); United States v. Jones, 56 F.3d 581,
585 n.9 (5th Cir. 1995); United States v. Moran, 998
F.2d 1368, 1372 (6th Cir. 1993); United States v.
Suarez-Perez, 484 F.3d 537, 542 (8th Cir. 2007);
5
United States v. Frey, 735 F.2d 350, 351–53 (9th Cir.
1984); United States v. Williams, 511 F.3d 1044, 1055
(10th Cir. 2007).
This case thus presents an ideal vehicle to resolve
this important question as well. The Speedy Trial
Act is the principal mechanism to secure the Sixth
Amendment right to a speedy trial. It ensures that
the presumed innocent do not languish in custody for
prolonged periods of pretrial incarceration or live
under the cloud of criminal accusations for longer
than necessary. The Seventh Circuit’s decision below
undermines the statutory safeguards Congress has
enacted to preserve that constitutional right. And
the district court’s acknowledgment that it had not
conducted the required ends-of-justice analysis when
it granted the continuance ensures that the issue is
cleanly presented here.
This case presents the Court with the rare
opportunity to resolve two circuit splits on cleanly
presented questions of national importance.
It
should grant certiorari and reverse.
OPINIONS BELOW
The Seventh Circuit’s opinion (Pet.App.1–8) is
reported at 40 F.4th 528. One of the relevant
opinions of the U.S. District Court for the Northern
District of Illinois (Pet.App.188–237) is reported at
420 F.Supp.3d 784. The second is unpublished
(Pet.App.49–150) but is available at 2021 WL
1057903. The third is unpublished but is reproduced
below at Pet.App.151–170.
6
JURISDICTION
The court of appeals issued its decision on July 6,
2022. Pet.App.1–38. Petitioner filed a petition for
rehearing on July 20, 2022, which was denied on
August 4, 2022. Pet.App.39–41. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The Wire Fraud Statute is reproduced at
Pet.App.316. The Speedy Trial Act is reproduced at
Pet.App.317.
STATEMENT OF THE CASE
A. Statutory Background
1. The wire fraud statute has existed in its
current form since 1952. It criminalizes the use of
wire communications to effect “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.
Wire fraud affecting a financial institution is
punishable by up to 30 years’ imprisonment and has
a 10-year statute of limitations. Id. § 3293(2).
As part of Dodd-Frank, almost 60 years after the
enactment of the wire fraud statute, Congress
amended § 4c(a)(5)(C) of the Commodity Exchange
Act (“CEA”) to outlaw “spoofing”—defined as “bidding
or offering with the intent to cancel the bid or offer
before execution,” 7 U.S.C. § 6c(a)(5)(C). The antispoofing provision took effect on July 16, 2011, and it
is subject to the CEA’s general five-year statute of
limitations. See 28 U.S.C. § 2462.
7
A spoofing scheme involves a trader placing a
large order on one side of the market and entering at
the same time a smaller order on the other side of the
market. See Gideon Mark, Spoofing and Layering,
45 J. Corp. L. 399, 402 (2020). The trader places the
large order with the hope of inducing other market
participants to execute against the smaller order.
See John I. Sanders, Spoofing: A Proposal for
Normalizing Divergent Securities and Commodities
Futures Regimes, 51 Wake Forest L. Rev. 517, 518–
19 (2016). If that hope comes to fruition, the trader
cancels the larger order.
An example of spoofing might help. Suppose a
trader purchases a small number of futures contracts
for $5.00, which he offers for sale at $5.02. The
trader then places a large buy order at $5.01, hoping
that other market participants interpret the large
buy order as an indication that the price will soon
rise in value. Some market participants, attempting
to front-run the large buy order, purchase the
contracts at $5.02. Having sold his contracts at
$5.02, the initial trader then cancels the $5.01 buy
order, and takes home a 2-cent profit.
Spoofing dates to the 1800s, United States v.
Wedd, 993 F.3d 104, 111 n.2 (2d Cir. 2021), and
historically was not considered fraudulent among
traders, see Jerry W. Markham, LAW ENFORCEMENT
HISTORY
OF
FINANCIAL
MARKET
AND
THE
MANIPULATION 388 (M.E. Sharpe 2014) (describing
the trading acumen of Nathan Rothschild in the
1820s in first entering sell orders to prevent other
traders from discovering that he intended soon after
to make large purchases).
8
Before Dodd-Frank, in competitive trading
environments, where traders owe one another no
fiduciary duties, spoofing referred to deception that
was considered “cunning.” Kevin Rodgers, WHY
AREN’T THEY SHOUTING? 99 (2016). Indeed, spoofing
is no more deceptive than many other common
trading practices, including hidden “iceberg” orders,
large orders broken into multiple smaller orders, and
trading anonymously on both sides of the market. In
Dodd-Frank, Congress deliberately treated spoofing
different from fraud, categorizing it as a “disruptive
practice,” subject to a maximum sentence of 10 years
and a 5-year statute of limitations, 28 U.S.C. § 2462,
rather than the 30-year maximum sentence and the
10-year statute of limitations governing wire fraud.
Prior to the passage of Dodd-Frank, not a single
person had been prosecuted criminally for spoofing,
and courts had rejected the theory that a bid or offer
that a trader was willing to honor could be
fraudulent. See United States v. Radley, 659 F. Supp.
2d 803, 814–15 (S.D. Tex. 2009) (dismissing
indictment against traders who allegedly used “best
bids” and “stacked bids” to drive up prices); Mark, 45
J. Corp. L. at 428 (“[U]ntil October 2019 no court had
held that spoofing constitutes wire fraud.”).
2. The Speedy Trial Act requires that the trial of
the accused “shall commence” within 70 days “from
the filing date (and making public) of the information
or indictment” or from the accused’s initial
appearance before a judicial officer, whichever occurs
later. 18 U.S.C. § 3161(c)(1). To provide “sufficient
flexibility” to make compliance with the 70-day
deadline a realistic goal, the Act “automatically”
excludes from the computation of the 70-day period
9
certain “specific and recurring periods of time often
found in criminal cases.” S. Rep. No. 212, 96th
Cong., 1st Sess. 9 (1979); see Bloate v. United States,
559 U.S. 196, 199 n.1 (2010). Two of the automatic
exclusions have relevance here.
First, the Act automatically excludes “delay
resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on,
or other prompt disposition of, such motion.” 18
U.S.C. § 3161(h)(1)(D).
Second, the Act
automatically
excludes
“delay
reasonably
attributable to any period, not to exceed thirty days,
during which any proceeding concerning the
defendant is actually under advisement by the court.”
Id. § 3161(h)(1)(H). A motion has been taken “under
advisement” once “the court receives all the papers”
it needs to decide the motion. Henderson v. United
States, 476 U.S. 321, 329 (1986).
In addition to the subsections involving automatic
exclusions, the Act contains exclusions that apply
“only if the district court makes certain findings
enumerated in the statute.” Bloate, 559 U.S. at 200;
see 18 U.S.C. § 3161(h)(6)–(8). The Act authorizes
district courts to exclude from the 70-day calculation
“[a]ny period of delay resulting from a
continuance . . . if
the
judge
granted
such
continuance on the basis of his findings that the ends
of justice served by taking such action outweigh the
best interest of the public and the defendant in a
speedy trial.” 18 U.S.C. § 3161(h)(7)(A). A district
court must consider four specific factors listed in
§ 3161(h)(7)(B) along with other considerations to
10
determine whether the circumstances warrant an
ends-of-justice continuance.
When the district court fails to commence a trial
within the 70-day period, “the information or
indictment shall be dismissed on motion of the
defendant.” Id. § 3162(a)(2). Dismissal may be with
or without prejudice, depending on the district court’s
weighing of various factors. United States v. Taylor,
487 U.S. 326, 336–337 (1988).
B. District Court Proceedings
Petitioner worked as a precious metals trader for
Deutsche Bank, where he traded futures contracts
from May 2007 through March 2015 out of the bank’s
London office. Pet.App.2. 1
Petitioner traded on COMEX, a fast-moving,
electronic exchange used for trading commodity
futures contracts. Pet.App.4. COMEX allows traders
to enter orders to buy or sell contracts at specified
prices and quantities. Pet.App.4. COMEX permits
traders to bid and offer on both sides of the market
simultaneously. Pet.App.306. It also allows hidden
“iceberg” orders that disguise the true number of
contracts bid or offered. Pet.App.306. Orders placed
on COMEX must be honored once accepted.
Pet.App.306. But traders may cancel open orders at
any time prior to execution. Pet.App.306.
The government initially charged Petitioner with,
among other things, spoofing in violation of the CEA.
Pet.App.303. In a July 2018 indictment, however,
1
The government prosecuted Petitioner and Cedric Chanu
together, and their appeals were consolidated below. Pet.App.5.
11
the government dropped the CEA charges and
indicted Petitioner for wire fraud affecting a financial
institution under 18 U.S.C. § 1343 and conspiracy to
commit wire fraud affecting a financial institution
under 18 U.S.C. § 1349, based on trading that
occurred between 2009 and 2011. Pet.App.303. By
doing so, the government sought to reach conduct
that pre-dated Dodd-Frank’s July 16, 2011 effective
date or fell outside the CEA’s five-year statute of
limitations.
According to the government, some of Petitioner’s
orders “were material misrepresentations that falsely
and fraudulently represented to traders that
[Petitioner was] intending to trade . . . when, in fact,
[he was] not because, at the time [the orders] were
placed, [Petitioner] intended to cancel them before
execution.” Pet.App.177. The government thus
charged Petitioner under the wire fraud statute on
the theory that he impliedly misrepresented his
intent to cancel orders that he was willing to honor if
accepted.
On November 15, 2018, Petitioner moved to
dismiss the indictment. See Mot. to Dismiss, United
States v. Vorley, No. 18-cr-35 (N.D. Ill. Nov. 15,
2018). That same day, the district court granted a
continuance and excluded time under the Speedy
Trial Act, relying on the automatic exclusion of time
triggered by the filing of the motion. Pet.App.302.
The subsequent docket entry cited 18 U.S.C.
§ 3161(h)(1)(D), which excludes “delay resulting from
any pretrial motion, from the filing of the motion
through the conclusion of the hearing on, or other
prompt disposition of, such motion.” It did not refer
12
to the automatic exclusion in § 3161(h)(1)(H) or the
“ends of justice” exclusion in § 3161(h)(7)(A).
At the conclusion of oral argument on January 24,
2019, the district court stated that it would “rule
pretty promptly.” Pet.App.286. Nearly ten months
later, on October 21, 2019, the district court denied
the motion to dismiss. Pet.App.188.
Ten days later, on October 31, 2019, the district
court, relying on 18 § U.S.C. 3161(h)(7)(A), made an
ends-of-justice finding to exclude time until the next
status conference. Pet.App.289. This marked the
first time since November 15, 2018, that the district
court excluded time under the Act.
In May 2020, Petitioner moved to dismiss under
the Speedy Trial Act, arguing that the district court
had allowed more than 70 days of non-excluded time
to elapse during the consideration of the motion to
dismiss the indictment. Mot. to Dismiss, United
States v. Vorley, No. 18-cr-35 (N.D. Ill. May 20, 2020).
As Petitioner explained, briefing on the motion to
dismiss had concluded on March 26, 2019, at which
point the district court took the motion “under
advisement” and trigged the 30-day period under 18
U.S.C. § 3161(h)(1)(H). Mot. to Dismiss, United
States v. Vorley, No. 18-cr-35 at 11 (N.D. Ill. May 20,
2020). That automatic exclusion of up to 30 days
extended the tolling of time to April 25, 2019, at the
latest. The district court, however, did not deny
Petitioner’s motion until October 21, 2019, and it did
not grant any ends-of-justice continuance until
October 31, 2019. Pet.App.188. Based on that
timeline, Petitioner argued that the district court had
allowed 189 days of non-excludable time to elapse
13
from April 25, 2019 to October 31, 2019. Mot. to
Dismiss, United States v. Vorley, No. 18-cr-35 at 11
(N.D. Ill. May 20, 2020).
Two months later, the district court denied the
motion. Pet.App.151. While acknowledging that it
had misconstrued the duration of the automatic
exclusions, by incorrectly believing that they carried
through until disposition of the pending motion to
dismiss, the district court concluded that Petitioner
had not suffered a violation of his rights under the
Act because the court would have made an ends-ofjustice finding under 18 U.S.C. § 3161(h)(7) on
November 15, 2018, had it known of its error.
Pet.App.158 n.3. The district court then made an
ends-of-justice finding that it applied retroactively to
exclude all time from April 25, 2019 to October 31,
2019. Pet.App.158 n.3.
The case proceeded to trial. In September 2020, a
jury deliberated for four days before convicting
Petitioner of three counts of wire fraud. Pet.App.16.
The district court denied Petitioner’s motion for a
judgment of acquittal and motion for a new trial.
Pet.App.16. Petitioner was sentenced to one year
and one day of incarceration. Pet.App.16. He
appealed.
C. The Decision Below
1. On appeal, Petitioner argued that a “scheme to
defraud” for purposes of the wire fraud statute
requires an express false statement or material
omission of fact. Br. of Appellants, United States v.
Vorley, No. 21-2242 at 46 (filed Oct. 15, 2021).
Placing visible orders on the COMEX exchange that
14
Petitioner was willing and able to honor fell short of
that requirement, regardless of whether Petitioner
had hoped to cancel the orders. Id. at 2. Petitioner
also argued that the superseding indictment should
have been dismissed because of the district court’s
violation of the Speedy Trial Act. Id. at 3.
2. The Seventh Circuit affirmed. Addressing the
wire fraud convictions, the court concluded that, “[b]y
obscuring [his] intent to cancel, through an
orchestrated approach, [Petitioner] advanced a
quintessential
‘half-truth’
or
implied
misrepresentation—the public perception of an intent
to trade and a private intent to cancel in the hopes of
financial gain.” Pet.App.23. The decision thus
adopted
the
government’s
“implied
misrepresentation” theory and upheld Petitioner’s
convictions without any evidence of an express false
statement or a material omission that made an
express statement misleading.
With respect to the Speedy Trial Act, the Seventh
Circuit accepted that 189 days of delay had
transpired from April 25, 2019 through October 31,
2019, while the district court had Petitioner’s motion
to dismiss the indictment under advisement.
Pet.App.37. But the Seventh Circuit nevertheless
held that the district court cured that unexcused
delay when it made an ends-of-justice finding in its
later order denying Petitioner’s speedy trial motion.
Pet.App.38. It cited a long line of Seventh Circuit
precedents, which establish that a “district court is
not required to make the ends of justice findings
contemporaneously with its continuance order.”
Adams, 625 F.3d at 380.
15
3. The Seventh Circuit denied a petition for
rehearing and for rehearing en banc. Pet.App.39.
REASONS FOR GRANTING THE PETITION
The decision below is wrong, violates this Court’s
repeated warnings against expansive interpretations
of the fraud statutes, and exacerbates a circuit split
on whether an express false statement or material
omission is required for a conviction under the wire
fraud statute.
The decision below also entrenches a circuit split
with respect to the Speedy Trial Act. Seventh Circuit
precedents permitting retroactive ends-of-justice
findings are wrong, split from six other circuits, and
undermine the constitutional guarantee protected by
the Act. This case presents an ideal vehicle to
resolve both issues.
I. This Court Should Grant Review To Resolve
A Circuit Split Over The Evidence Required
To Support A Conviction Under The Wire
Fraud Statute.
A.
The Circuits
Question.
Are
Divided
on
This
The government’s expansive theory in this case
has exacerbated a circuit split. Consistent with the
text of the wire fraud statute, the Second, Sixth, and
Eleventh Circuits hold that a “scheme to defraud”
requires evidence of an express false statement or an
omission of material fact. By contrast, the Seventh
and Ninth Circuits permit the government to obtain
a wire fraud conviction based on evidence of an
“implied misrepresentation,” without evidence that
16
the defendant made an express false statement or
omitted a material fact that made an express
statement misleading. The Court should intervene
to resolve this important question.
1. The Seventh and Ninth Circuits hold that a
defendant can be convicted of wire fraud based on an
“implied misrepresentation” that could induce a
counterparty to engage in a transaction that the
party might otherwise have avoided.
In the decision below, the Seventh Circuit
concluded that “false representation” as used in the
wire fraud statute “encompasses a range of conduct,”
including “implied misrepresentations” that are
“intended to induce a false belief.” Pet.App.23.
Based on that interpretation, the Seventh Circuit
held that “[b]y obscuring [his] intent to cancel,
through an orchestrated approach, [Petitioner]
advanced a quintessential ‘half-truth’ or implied
misrepresentation—the public perception of an intent
to trade and a private intent to cancel in the hopes of
financial gain.” Pet.App.23. But Petitioner never
made any false statement about his offers to buy or
sell futures contracts—which he was prepared to
(and did) honor if accepted. Nor did he make any
statement about whether he would trade or cancel an
order. And the supposed victims of the scheme
received exactly what they bargained for. But it was
sufficient according to the Seventh Circuit that
Petitioner’s orders “implied” that he actually wanted
to trade them and could have deceived other traders
into executing on other orders that they might not
otherwise have traded.
17
The Ninth Circuit takes a similar approach.
There, all the government must prove to obtain a
wire fraud conviction is a defendant’s “specific intent”
to defraud.
Bohonus, 628 F.2d at 1172.
The
government need not prove “an affirmative
misrepresentation of fact, since it is only necessary
for the government to prove that the scheme was
calculated to deceive persons of ordinary prudence.”
Id. In United States v. Woods, 335 F.3d 993 (9th Cir.
2003), for instance, the Ninth Circuit explained that,
where “a scheme is devised with the intent to
defraud, and the mails are used in executing the
scheme, the fact that there is no misrepresentation of
a single existing fact is immaterial. It is only
necessary to prove that the scheme is reasonably
calculated to deceive, and that the mail service of the
United States was used and intended to be used in
the execution of the scheme.” Id. at 998 (quoting
Lustiger v. United States, 386 F.2d 132, 138 (9th Cir.
1967)); United States v. Namvar, 498 F. App’x 749,
751 (9th Cir. 2012) (“[T]he government is not
required to prove any particular false statement was
made” so long as there is “proof of a scheme or
artifice to defraud, which may or may not involve any
specific false statements.”).
2. By contrast, the Second, Sixth, and Eleventh
Circuits require evidence of an express false
statement or an omission of material fact that makes
an express statement misleading.
Start with the Second Circuit. In United States v.
Connolly, 24 F.4th 821 (2d Cir. 2022), the
government charged two traders with wire fraud,
accusing them of manipulating submissions used to
18
calculate the London Interbank Offered Rate, or
LIBOR. According to the government, the traders
submitted manipulated estimates of the bank’s
borrowing costs, which influenced the LIBOR rate
and allowed the traders to profit on contracts
dependent on changes in that rate. Id. at 825. After
the jury convicted, the Second Circuit reversed,
finding no evidence showing that the traders
submitted data that was objectively “false,
fraudulent, or misleading.” Id. at 843. The court
rejected the government’s theory that the
submissions were false “because they impliedly
certified that there had in fact been no trader
influence.”
Id.
And the Second Circuit had
previously “drawn a fine line between schemes that
do no more than cause their victims to enter into
transactions they would otherwise avoid—which do
not violate the mail or wire fraud statutes—and
schemes that depend for their completion on a
misrepresentation of an essential element of the
bargain—which do violate the mail and wire fraud
statutes.” United States v. Shellef, 507 F.3d 82, 108
(2d Cir. 2007). 2
The Eleventh Circuit similarly holds that a wire
fraud conviction requires proof of an objectively false
The Second Circuit has, at times, taken a more expansive
approach. This Court is reviewing the Second Circuit’s adoption
of a “right-to-control” theory in Ciminelli v. United States, 142
S. Ct. 2901 (2022). As explained below, the Seventh Circuit
error here is akin to the Second Circuit’s misreading of the
statute in Ciminelli. Thus, this Court should similarly grant
review here or, at a minimum, hold this petition for resolution
of Ciminelli.
2
19
statement or a material omission relating to an
essential element of the bargain. In United States v.
Takhalov, 827 F.3d 1307 (2016), bar owners hired
women to lure businessmen into their nightclub,
where the men were induced to spend money on
alcohol. Id. at 1310. The government convicted the
bar owners of wire fraud based on the “bar girl”
scheme. Id. But the Eleventh Circuit reversed. The
Eleventh
Circuit
explained
that
dictionary
definitions “make clear that there is a difference
between deceiving and defrauding” because, “to
defraud, one must intend to use deception to cause
some injury[,] but one can deceive without intending
to harm at all.” Id. at 1312. Based on that
distinction, the Eleventh Circuit held that a “scheme
to defraud,” as used in the wire fraud statute, “refers
only to those schemes in which a defendant lies about
the nature of the bargain itself.” Id.
The Sixth Circuit has held that a civil claim based
on an alleged violation of the criminal wire fraud
statute must involve false statements or material
omissions of fact. In Bender v. Southland Corp., 749
F.2d 1205 (6th Cir. 1984), plaintiffs brought a civil
RICO claim predicated on the mail fraud statute on
the theory that the defendant charged plaintiffs for
expenses that never occurred. Id. at 1210. The
district court dismissed the claim and the Sixth
Circuit affirmed. Relying on circuit precedent, the
Sixth Circuit held that “plaintiffs’ complaint [did] not
allege what misrepresentations (or omissions) of
material fact [the defendant] made to the plaintiffs.”
Id. at 1216.
20
Similarly, in Walters v. First Tennessee Bank,
N.A. Memphis, 855 F.2d 267 (6th Cir. 1988), the
Sixth Circuit affirmed a directed verdict in favor of a
bank-defendant because the plaintiff failed to allege
that the bank made a false misrepresentation or
omission needed to support a civil RICO claim
predicated on the mail fraud statute. Plaintiff based
the RICO claim on the theory that the bank charged
a rate of interest at the bank’s “prime” rate, thereby
deceiving plaintiff into believing that it was the
lowest rate available to bank customers. Id. at 272.
The Sixth Circuit affirmed because the plaintiff
presented no evidence that the bank made any false
“misrepresentations
or
omissions
reasonably
calculated to deceive Walters as required for mail
fraud.” Id. at 273; Blount Financial Services, Inc.,
819 F.2d at 152 (affirming the dismissal of a civil
RICO claim predicated on the mail fraud statute
because the “plaintiff has not alleged with
particularity any such false statement of fact”).
B. The Decision Below Was Incorrect.
1. The wire fraud statute targets fraud. See 18
U.S.C. § 1343. Someone commits fraud by presenting
a materially false statement as true. U.S. ex rel.
O’Donnell v. Countrywide Home Loans, Inc., 822 F.3d
650, 656 (2d Cir. 2016) (equating fraud with “a
knowingly false statement, made with intent to
defraud”). And an express “‘representation stating
the truth so far as it goes but which the maker knows
or believes to be materially misleading because of his
failure to state additional or qualifying matter’ is also
actionable.’” Universal Health Servs., Inc. v. United
States, 579 U.S. 176, 188 (2016) (quoting
21
Restatement (Second) of Torts § 529, p. 62 (1976)). A
“scheme to defraud” therefore requires a false
statement or the omission of material information
that makes an express statement misleading. Neder
v. United States, 527 U.S. 1, 4 (1999).
Moreover, a scheme to defraud “refers only to
those schemes in which a defendant lies about the
nature of the bargain itself.” Takhalov, 827 F.3d at
1313–14. As Judge Thapar has put it: “the defendant
might lie about the price (e.g., if he promises that a
good costs $10 when it in fact costs $20) or he might
lie about the characteristics of the good (e.g., if he
promises that a gemstone is a diamond when it is in
fact a cubic zirconium). In each case, the defendant
has lied about the nature of the bargain and thus in
both cases the defendant has committed wire fraud.”
Id.
But that is not what happened here. Petitioner
made no materially false statement about his orders.
Nor did he omit a material fact that he had a duty to
disclose to other traders. The decision below
acknowledged that, “by simply placing an order, a
trader is not certifying it will never be cancelled.”
Pet.App.23.
Yet, the Seventh Circuit affirmed
Petitioner’s conviction on the theory that he made an
“implied misrepresentation” that he had “an intent to
trade” while harboring “a private intent to cancel in
the hopes of financial gain.” Pet.App.23. That is
simply wrong on its own terms: Petitioner’s orders,
at most, implied a willingness to trade—which was,
in fact, true because he was willing and able to
perform if the order was executed. And Petitioner’s
desire to cancel the orders did not render any express
22
statement of fact false or misleading. Nor did
Petitioner’s “private intent” affect the “nature of the
bargain”—which was to buy or sell certain
commodities at specified prices. Indeed, COMEX’s
own rules—permitting traders to place “iceberg”
orders, to structure large orders into smaller ones,
and to otherwise conceal the full extent of their
private intent to buy or sell—confirm as much.
2. The government’s “implied misrepresentation”
theory is inconsistent with decades of decisions from
this Court, starting with Williams v. United States,
458 U.S. 279 (1982). There, this Court held that the
presentation of a check with knowledge that the
checking account had insufficient funds did not
constitute a “false statement” within the meaning of
18 U.S.C. § 1014. Id. at 285. In this Court’s view, “a
check is not a factual assertion at all, and therefore
cannot be characterized as ‘true’ or ‘false,”’ as a check
just “contains an unconditional promise or order to
pay a sum certain in money.” Id. at 284–85. If a
check’s promise to pay is not a materially false
statement, then an offer to buy or sell—which
required Petitioner to accept the risk of execution—is
not a materially false statement either. See, e.g.,
United States v. Kurlemann, 736 F.3d 439, 447 (6th
Cir. 2013) (Sutton, J.) (“The district court’s
instruction in this case—a ‘statement may be false
when it contains a half-truth or when it conceals a
material fact,’ . . . permits the same kind of implied
representation or material omission theory that the
Williams majority rejected.”).
Consider next Neder v. United States, 527 U.S. 1
(1999). There, this Court held that, to come within
23
the wire fraud statute, a defendant’s “scheme to
defraud” must involve a “material fact.” Id. at 22.
That requirement derives from the well-settled
meaning
of
fraud,
which
“required
a
misrepresentation or concealment of material fact.”
Id. The law simply does not conceive of fraud
without proof that the fraud involved some
underlying falsehood. Id. Here, there was no
material falsehood because Petitioner was, in fact,
willing to perform on the relevant orders if they were
executed before cancellation.
Pasquantino v. United States, 544 U.S. 349
(2005), confirms that, even in the omission context,
the government must prove that the defendant
omitted a material fact to obtain a wire fraud
conviction. There, the Court reviewed convictions
under the wire fraud statute arising from a scheme
to smuggle large quantities of liquor from the United
States into Canada, to evade Canadian taxes. Id.
Although the defendants made no affirmative false
representations, the Court concluded that they had
engaged in a “scheme to defraud” Canada of its
valuable entitlement to tax revenue when they
“concealed imported liquor from Canadian officials
and failed to declare those goods on customs forms.”
Id. The key was that the defendants had concealed a
fact (that they possessed imported liquor) that was
material (because it enabled them to avoid tax
liability). Id. Here, Petitioner was accused merely of
concealing a subjective intent (to cancel the orders)
that was not material to the nature of the bargain (to
trade commodities at specified prices).
24
C. This Question is Exceptionally Important
and This Case Presents an Ideal Vehicle
to Resolve it.
1.
Resolution of this question is critically
important for courts, prosecutors, and individuals
alike. Federal prosecutors invoke the fraud statutes
“to impose criminal penalties upon a staggeringly
broad swath of behavior.” Sorich, 555 U.S. at 1204
(Scalia, J., dissenting from denial of certiorari). To
prevent turning the wire fraud statute into a
catchall, the Court has repeatedly reined in broad
interpretations of the fraud statutes that would
“approve a sweeping expansion of federal criminal
jurisdiction in the absence of a clear statement by
Congress.” Cleveland v. United States, 531 U.S. 12,
24 (2000). The decision below does exactly that.
In the Seventh and Ninth Circuits, federal
prosecutors may target individuals for prosecution
under the wire fraud statute even when those
individuals made no express false statement nor
omitted a material fact. This expansive view exploits
the fraud statutes’ “general statutory language” to
place “power in the hands of the prosecutor” to
“pursue their own personal predilections.” Marinello
v. United States, 138 S. Ct. 1101, 1108 (2018)
(quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)).
And it risks “nonuniform execution” of prosecutorial
power “across time and geographic location.”
Marinello, 138 U.S. at 1109. The Court should
intervene to ensure that the fraud statutes are not
construed to criminalize conduct in some parts of the
country but not in others.
25
2. This question is also a frequently recurring
one. Federal prosecutors rely on the federal fraud
statutes in hundreds of prosecutions each year. See
Susan R. Klein & Ingrid B. Grobey, Debunking
Claims of over–Federalization of Criminal Law, 62
Emory L.J. 1, 29 (2012) (noting that 1400 individuals
were prosecuted for mail and wire fraud in 2011
alone). Allowing prosecutors to rely on an “implied
misrepresentation” will lead to even more
prosecutions where defendants lack fair notice that
their conduct may be considered a federal crime.
Kelly, 140 S. Ct. at 1568, 1574.
This Court recently granted certiorari to consider
whether the wire fraud statute allows a conviction
where a defendant deprives a counterparty of
information that could affect the party’s economic
decision-making. See Ciminelli, 142 S. Ct. at 2901.
The Seventh Circuit’s decision allowing spoofing to be
prosecuted under an implied misrepresentation
theory derives from a similar misapprehension of the
statute: the notion that counterparties on COMEX
were deprived of material information about supply
and demand based on Petitioner’s failure to disclose
his secret intention to cancel his orders and thereby
induce others to engage in transactions they
otherwise would have avoided. This Court should
thus similarly grant this petition to consider the
Seventh Circuit’s expansion of the statute or, at a
minimum, hold the petition pending the outcome in
Ciminelli.
3.
This case is also an ideal vehicle for
considering this question. The Seventh Circuit has
now squarely held that, to obtain a conviction under
26
the wire fraud statute, the government need not
prove that a defendant’s scheme to defraud involved
an actual false statement or an omission of material
fact, but may be based on an implied
misrepresentation about subjective intentions. If
this theory of fraud is invalid, Petitioner’s conviction
must be vacated.
Moreover, no procedural or
jurisdictional issues prevent review. The issue has
sufficiently percolated in the lower courts and only
this Court’s review can bring uniformity.
II. This Court Should Grant Review To Resolve
A Circuit Split Over Whether An Ends-ofJustice Determination Must Be Made At The
Time Of A Continuance.
A.
The Circuits
Question.
Are
Divided
on
This
The Speedy Trial Act “sets forth a basic rule” that
the accused must be tried within 70 days of
indictment or the date the accused first appears in
court, whichever is later.
United States v.
Tinklenberg, 563 U.S. 647, 652 (2011); 18 U.S.C.
§ 3161. The Act, however, expressly excludes eight
subcategories of time from the 70-day calculation. 18
U.S.C. § 3161(h). Among those subcategories include
a district court’s finding that the ends of justice
outweigh the interests of the defendant and the
public in a speedy trial. Id. § 3161(h)(7)(A).
While district courts have discretion in excluding
time under the ends-of-justice subcategory, they
must do more than merely cite the category to
warrant exclusion. No time may be excluded under
this subcategory “unless the court sets forth, in the
27
record of the case, either orally or in writing, its
reasons for finding that the ends of justice served by
the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy
trial.”
Id. § 3161(h)(7)(A); id. § 3161(h)(7)(C)
(prohibiting a court from excluding time based solely
on “general congestion of the court’s calendar”).
A list of four non-exclusive factors dictates
whether a district court may grant a continuance
under
the
ends-of-justice
subcategory.
Id.
§ 3161(h)(7)(B). All four factors contain forwardlooking language. United States v. Marquez, 602 F.
Supp. 2d 285, 289 (D. Mass. 2009) (noting that the
factors “all encompass at least some prediction about
events yet to occur”). Thus, a district court’s ends-ofjustice finding “must occur contemporaneously with
the granting of the continuance because Congress
intended that the decision to grant an ends-of-justice
continuance be prospective, not retroactive.” United
States v. Apperson, 441 F.3d 1162, 1180 (10th Cir.
2006).
The Second, Fifth, Sixth, Eighth, Ninth, and
Tenth Circuits all recognize that this is how
Congress designed the statute to work. By contrast,
the decision below quadrupled down on Seventh
Circuit precedents that allow district courts to make
retroactive ends-of-justice findings. In the Seventh
Circuit, a defendant can never obtain the dismissal of
the indictment for a Speedy Trial Act violation so
long as the district court, upon reviewing the motion
to dismiss, decides, after the fact, that the “ends of
justice” would have favored an already elapsed delay.
28
This Court should intervene to resolve this split and
to safeguard the rights of the accused.
1. The Second, Fifth, Sixth, Eighth, Ninth and
Tenth Circuits hold that an ends-of-justice finding
must be made at the time the court grants a
continuance—and cannot be made after-the-fact.
Take the case of United States v. Jones, 56 F.3d
581 (5th Cir. 1995). There, Jones’s co-defendant filed
a motion in May 1992 to continue trial given the
complexity of the legal issues at stake. Id. at 583.
After 13 months, the district court had still not
issued any ruling or made any findings to justify the
delay. Id. So Jones (like Petitioner here) moved to
dismiss the indictment on Speedy Trial Act grounds.
Id. In July 1993, the district court entered an order
purporting to “memorializ[e]” its earlier “ruling”
granting the May 1992 continuance motion. Id. The
Fifth Circuit reversed. In doing so, it noted that
“virtually every Circuit has held that the entry of
findings in the record after granting the continuance
is not reversible error so long as the findings were
not actually made after the fact.” Id. at 585 n.9. In
this instance, “the district court did perform an endsof-justice analysis, but did so on July 8, 1993, almost
a year after the continuance was implicitly granted.”
Id. That amounted to reversible legal error.
The Eighth Circuit agrees. In United States v.
Suarez-Perez, 484 F.3d 537 (8th Cir. 2007), the
district court granted an ends-of-justice continuance
to exclude time from August 2004 through September
2004. In an order issued in January 2005, however,
the district court realized that it should have
excluded time from June 2004 through September
29
2004, rather than just from August 2004 through
September 2004. So the court amended the prior
order to retroactively extend the exclusion from June
2004 through September 2004. Id. at 539. The
Eighth Circuit reversed. Id. According to the Eighth
Circuit, the “Speedy Trial Act does not provide for
retroactive continuances.” Id. at 542. The district
court’s January 2005 order “rewr[o]te history and
substantially change[d] Suarez-Perez’s Speedy Trial
Act rights.” Id. at 541. Nothing in the record
supported the district court’s claim that it had made
an “ends of justice continuance” from June 2004
through September rather than from August 2004
through September at the time it granted the
continuance.
Id. at 542.
That amounted to
reversible error.
The Tenth Circuit has taken the same approach.
In United States v. Williams, 511 F.3d 1044 (10th
Cir. 2007), the district court granted a continuance
based on an ends-of-justice finding in July 2005 to
exclude time from February 2005 through September
2005. On appeal, the defendant argued that the
district court “retroactively excluded the days
following February 14, 2005 through July 19, 2005,”
which violated his Speedy Trial Act rights. Id. at
1056. The Tenth Circuit agreed, holding that “the
Act does not allow a district court to retroactively
grant an ends-of-justice continuance.” Id. at 1055.
The Tenth Circuit added that, even though the “endsof-justice findings mandated by the Act ‘may be
entered on the record after the fact, they may not be
made after the fact.”’ Id. (quoting Apperson, 441 F.3d
at 1180); United States v. Koerber, 813 F.3d 1262,
30
1279 (10th Cir. 2016); United States v. Johnson, 120
F.3d 1107, 1111 (10th Cir. 1997).
The Second Circuit has adopted the same view.
In United States v. Kelly, 45 F.3d 45 (2d Cir. 1995),
the district court made an ends-of-justice finding that
retroactively excluded time from calculation under
the Act. The Second Circuit reversed and reaffirmed
circuit precedent establishing that a district court’s
retroactive exclusion of time under § 3161(h)(7)(A)
cannot serve to toll the clock. Id. at 47 (citing United
States v. Tunnessen, 763 F.2d 74, 78 (2d Cir. 1985)).
In a similar vein, the Second Circuit holds that a
district court may not render an indefinite ends-ofjustice exclusion based on the complexity of the case.
Even if a case presents some complexity, “complexity
per se is not an excuse for indefinite delay,” or “a
means of circumventing the requirements of the
Speedy Trial Act.” United States v. Pikus, 39 F.4th
39, 54 (2d Cir. 2022) (quotation omitted). To avoid
violating a defendant’s Speedy Trial Act rights, a
court must not only “police the behavior of the
prosecutor and defense counsel,” but also must
“police itself.” Id.
The Ninth Circuit agrees. In United States v.
Spanier, 637 F. App’x 998 (9th Cir. 2016), the district
court made a retroactive ends-of-justice finding to
cure a Speedy Trial Act violation. The Ninth Circuit
reversed. Relying on circuit precedent, the Ninth
Circuit reiterated that a “district court err[s] by
making nunc pro tunc findings to accommodate its
unwitting violation of the Act.” Id. at 1000 (quoting
Frey, 735 F.2d at 351–53). Applying that precedent,
the Ninth Circuit concluded that the district court
31
never made an ends-of-justice finding and that it
could not do so after the continuance had already
been granted. Spanier, 637 F. App’x at 1000.
The Sixth Circuit is in accord. In United States v.
Moran, 998 F.2d 1368 (6th Cir. 1993), the district
court issued an ends-of-justice finding in February
1990, which excluded time up until the defendant
filed his suppression motion. At a date after the
defendant had already filed his motion, the “district
court retroactively expanded the continuance to
exclude all of the time through the date the court
ruled on the motion.” Id. at 1372. The Sixth Circuit
held that the Act did not permit the court’s “post-hoc
rationalization.” Id. The Sixth Court also made
clear that a district court may not “wipe out
violations of the Speedy Trial Act after they have
occurred by making the findings that would have
justified granting an excludable delay continuance
before the delay occurred.” Id. (quoting United States
v. Crane, 776 F.2d 600, 606 (6th Cir. 1985)). As a
result, the Sixth Circuit reversed and remanded with
instructions to dismiss the indictment. Moran, 998
F.2d at 1372.
2. The decision below breaks with those circuits
by allowing a district court to cure an admitted
Speedy Trial Act violation by making a retroactive
ends-of-justice finding.
In proceedings below, Petitioner filed a motion to
dismiss the superseding indictment. Mot. to Dismiss,
United States v. Vorley, No. 18-cr-35 (N.D. Ill. May
20, 2020). The district court expressly relied on 18
U.S.C. § 3161(h)(1)(D) to exclude time while it
considered the motion. Pet.App.290 (“Time will be
32
excluded through briefing and ruling on the
defendant’s motion to dismiss pursuant to 18 U.S.C.
§ 3161(h)(1)(D).”). Under 18 U.S.C. § 3161(h)(1)(H),
that automatic exclusion expired 30 days after the
district court took the motion “under advisement.”
But the district court took much longer than 30 days
to decide the motion, without ever considering
whether the “ends of justice” could justify the delay.
When ruling on the speedy trial motion, the
district
court
acknowledged
that
it
had
“misconstrued” the duration of the automatic
exclusions, wrongly believing that they carried
through until disposition of a motion no matter how
long it took to decide.
Pet.App.161.
Despite
conceding the error, the district court stated that if it
had known of the error “I unquestionably would have
remedied the error by including my determination
that the defendants’ request to defer other pretrial
motions warranted an ends-of-justice exclusion under
§ 3167(h)(7).” Pet.App.161 (emphasis added). Relying
on Seventh Circuit precedent, the district court ruled
that the “ends-of-justice findings required by
§ 3161(h)(7) need only be made by the time that the
Court rules on a motion to dismiss based on a
violation of the Speedy Trial Act.” Pet.App.157. The
district court thus made an after-the-fact ends-ofjustice finding.
The Seventh Circuit affirmed. It concluded that,
had “the underlying error been brought to [the
district court’s] attention, it ‘unquestionably’ would
have given ‘a full articulation of [its] reasoning.’”
Pet.App.38. The decision below thus reaffirmed that
no violation of the Speedy Trial Act occurs in the
33
Seventh Circuit so long as the district court makes
an ends-of-justice finding when ruling on the
defendant’s motion, even if the district court failed to
make the finding at the time the district court
granted the continuance.
The decision below relied on its own precedent in
United States v. Rollins, 544 F.3d 820 (7th Cir. 2008).
In that case, the defendant, like Petitioner here,
argued that the district court violated the Speedy
Trial Act because the court failed to make an ends-ofjustice finding at the time it granted a continuance.
Id. at 830. The Seventh Circuit disagreed, holding
that a “district court is not required to make the ends
of justice findings contemporaneously with its
continuance order.” Id. The decision below also cited
United States v. Adams, 625 F.3d 371 (7th Cir. 2010),
where the district court failed to make an ends-ofjustice finding at the time it granted a continuance
and instead provided a “subsequent elaboration of its
rationale” for excluding time under the ends-ofjustice subcategory. Id. at 380. There, too, the
Seventh Circuit concluded that the “fact that in one
instance the court made that finding (and stated the
reasons for it) in retrospect rather than
contemporaneously with its order granting the
continuance is immaterial.” Id.; see also Larson, 417
F.3d at 746 (holding that the district court is not
required to make Speedy Trial Act findings
contemporaneously with a continuance order”).
B. The Decision Below Was Incorrect.
The plain language of the Speedy Trial Act
prohibits a district court from making a retroactive
ends-of-justice finding. A district court instead must
34
consider the non-exhaustive list of factors and make
the required ends-of-justice finding at the time the
court grants the continuance.
See 18 U.S.C.
§ 3161(h)(7)(B).
Each factor contains forward-looking language,
which has led other circuits to correctly conclude that
a district court’s ends-of-justice finding “must occur
contemporaneously with the granting of the
continuance because Congress intended that the
decision to grant an ends-of-justice continuance be
prospective, not retroactive.” Apperson, 441 F.3d at
1180. A contrary rule that allows a district court to
make ends-of-justice findings after-the-fact deprives
the accused and the public of the opportunity to be
heard on whether the need for the continuance
outweighs their interest in a speedy trial.
This is not to say that a district court must always
put its finding on the record at the time that it grants
the continuance. The Court has noted that the endsof-justice subcategory is ambiguous on when the
ends-of-justice findings must be “se[t] forth, in the
record of the case,” although “best practice . . . is for a
district court to put its findings on the record at or
near the time when it grants the continuance.”
Zedner, 547 U.S. at 507. And a district court must at
a minimum enter its ends-of-justice findings on the
record before ruling “on a defendant’s motion to
dismiss under § 3162(a)(2).” Id.
But that is not what happened here. The reasons
for a continuance granted on November 15, 2018,
could not have included the unanticipated period of
delay between March and October 2019, while the
court had the motion to dismiss under advisement.
35
Indeed, the district court in January 2019 indicated
that it still expected to rule “promptly.” Pet.App.286.
But the Seventh Circuit allowed the district court to
retroactively cure a Speedy Trial Act violation by
deciding after the fact that the interests of justice
would have favored the previously granted
continuance.
C. This Question is Exceptionally Important
and This Case Presents an Ideal Vehicle
to Resolve it.
1.
Resolution of this question is critically
important for courts, prosecutors, and individuals
alike. The Speedy Trial Act safeguards fundamental
individual liberties and constitutional rights. By
preventing excessive pretrial incarceration, the Act
protects the “core” of the right to a speedy trial.
Brian P. Brooks, A New Speedy Trial Standard for
Barker v. Wingo: Reviving a Constitutional Remedy
in an Age of Statutes, 61 U. Chi. L. Rev. 587, 596–597
(1994). The Speedy Trial Act thus mandates “fixed
time limits” within which the defendant must be
brought to trial. S. Rep. No. 212, 96th Cong., 1st
Sess. 8 at 9 (1979) (statement of William H.
Rehnquist, Assistant Attorney General). Without
such limits, “the speedy trial protections afforded
both the individual and society by the Sixth
Amendment [are] largely meaningless.” Id.
Congress carefully balanced the need for fixed
time limits with narrowly tailored, judicially
supervised exceptions. By permitting district courts
to make ends-of-justice findings after-the-fact, the
Seventh Circuit distorts the Act’s statutory design.
And the Seventh Circuit’s misreading of the statute
36
could affect every federal prosecution within that
Circuit.
2. This case presents a procedurally clean vehicle
to resolve this entrenched circuit split. There is no
dispute about the Court’s jurisdiction. And there is
no doubt that the issue is squarely presented. The
district court admitted that it had misconstrued the
automatic exceptions and conducted a retroactive
ends-of-justice analysis. The decision below squarely
reached the issue presented after briefing by the
parties. If Petitioner prevails on the sole question
presented, the judgment below necessarily will be
invalid. There is no need for further percolation
because a long line of Seventh Circuit precedents
authorize district courts to make ends-of-justice
findings after-the-fact, while six circuits reject that
approach. The Court should intervene to restore
uniformity and safeguard the right of the accused to
a speedy trial.
37
CONCLUSION
This Court
certiorari.
should
grant
the
petition
for
Respectfully submitted,
ROGER A. BURLINGAME
MATTHEW L. MAZUR
DECHERT LLP
160 Queen Victoria Street
London, UK EC4V 4QQ
STEVEN A. ENGEL
MICHAEL H. MCGINLEY
Counsel of Record
JUSTIN W. AIMONETTI
DECHERT LLP
1900 K Street, NW
Washington, DC 20006
michael.mcginley@dechert.com
(202) 261-3300
Counsel for Petitioner
October 27, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.