Petition for Writ of Certiorari — Roger Paul Bradford, Petitioner v. United States

Supreme Court briefJan 21, 2025

Ask Donna

What actually matters in this document.

Text

No. 24IN THE

Supreme Court of the United States

ROGER PAUL BRADFORD,

Petitioner,

– v. –

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the U.S. Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

KENNETH F. MURRAY

Counsel of Record

316 E. Mitchell Dr.

Phoenix, AZ 85012-2338

(602) 684-7391

kfmurray2013@gmail.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Whether an indictment that alleges conduct

outside the reach of a criminal statute precludes a

district court from exercising jurisdiction to

adjudicate guilt.

RELATED PROCEEDINGS

U.S. Court of Appeals for the Eighth Circuit:

United States v. Bradford, Nos. 23-2240, 23-2517

(Aug. 20, 2024, rehearing denied Oct. 23, 2024).

U.S. District Court for the Southern District

Iowa: United States v. Bradford, No. 21 CR 67 (May

4, 2023).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ..................................... iv

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

STATEMENT ............................................................. 1

REASONS FOR GRANTING THE WRIT................. 4

I. The lower courts are divided over the reach of

Cotton as to whether an indictment that

affirmatively states a non-offense is jurisdictional

in nature................................................................ 7

A. .. The First, Fifth, Ninth and Eleventh Circuits

hold that an indictment that fails to state an

offense fails to invoke a district court’s

jurisdiction. ........................................................... 8

B. The Second, Sixth and Tenth Circuits interpret

Cotton to allow for the prosecution of non-crimes

in violation of the limited jurisdiction bestowed

on the district courts by Congress...................... 12

II. The decision below is unconstitutional, this is an

important issue involving a circuit split, and this

case is an excellent vehicle for resolving it. ....... 13

CONCLUSION ....................................................... 17

TABLE OF AUTHORITIES

CASES

Blackledge v. Perry, 417 U.S. 21 (1974) .................... 6

Bousley v. United States, 523 U.S. 614 (1998) .......... 9

Ciminelli v. United States, 598 U.S. 306 (2023) ... 3, 4

Class v. United States, 583 U.S. 174 (2018) .......... 6, 7

Cleveland v. United States, 531 U.S. 12 (2000) ........ 9

Commonwealth v. Hinds, 101 Mass. 209 (1869) ....... 6

Dubin v. United States, 599 U.S. 110 (2023) .......... 15

Ex parte Bain, 121 U.S. 1 (1887) ............................... 5

Exxon Mobil Corp. v. Allapattah Services, Inc., 545

U.S. 546 (2005) ........................................................ 4

Hamling v. United States, 418 U.S. 87 (1974) .......... 5

Kontrick v. Ryan, 540 U.S. 443 (2004) ...................... 4

Lafler v. Cooper, 566 U.S. 156 (2012) ...................... 15

Menna v. New York, 423 U.S. 61 (1975) .................... 6

Ornelas-Castro v. United States, Nos. 3:20-cv-2165-K

and 3:07-cr-197-K, 2020 U.S. Dist. LEXIS 233119,

2020 WL 7321059 (N.D. Tex. Dec. 11, 2020) ....... 12

Percoco v. United States, 598 U.S. 319 (2023) ........ 14

Snyder v. United States, 144 S. Ct. 2176 (2024) ..... 15

United States v. Aquart, 92 F.4th 77 (2d Cir. 2024) 13

United States v. Brown, 752 F.3d 1344 (11th Cir.

2014) .................................................................. 5, 11

United States v. Cabello, 33 F.4th 281 (5th Cir.

2022) ...................................................................... 11

United States v. Caperell, 938 F.2d 975 (9th Cir.

1991) ...................................................................... 12

United States v. Cotton, 535 U.S. 625 (2002) ... 4, 5, 7,

United States v. De Vaughn, 694 F.3d 1141 (10th

Cir. 2012) ............................................................... 13

United States v. Ellis, 115 F.4th 497 (6th Cir.

2024) ...................................................................... 13

United States v. Hansen, 599 U.S. 762 (2023) ........ 14

United States v. Hess, 124 U.S. 483 (1888) ............... 5

United States v. Marin, 90 F.4th 1235 (9th Cir.

2024) ...................................................................... 12

United States v. Meacham, 626 F.2d 503 (5th Cir.

1980) ...................................................................... 11

United States v. Peter, 310 F.3d 709 (11th Cir.

2002) .................................................................. 8, 10

United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir.

2003) ...................................................................... 12

STATUTES

18 U.S.C. § 666 ......................................................... 15

18 U.S.C. § 874 ........................................................... 2

18 U.S.C. § 1341 ......................................................... 9

18 U.S.C. § 1349 ......................................................... 2

18 U.S.C. § 1512 ................................................... 2, 15

18 U.S.C. § 3231 ............................................. 4, 11, 13

28 U.S.C. § 1254(1)..................................................... 1

41 U.S.C. § 8702 ......................................................... 2

42 U.S.C. § 1320a-7b(b) ............................................. 2

OTHER AUTHORITIES

Nancy J. King and Michael E. O’Neill, Appeal

Waivers and the Future of Sentencing Policy, 55

Duke L.J. 209 (2005) ............................................. 16

U.S. Sentencing Commission’s 2023 Sourcebook of

Federal Sentencing Statistics ............................... 16

RULES

Fed. R. Crim. Proc. 12 ................................................ 3

PETITION FOR A WRIT OF CERTIORARI

Roger Paul Bradford respectfully petitions for a

writ of certiorari to review the judgment of the U.S.

Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is published

at 113 F.4th 1019. The district court’s judgment and

order appealed therefrom are reproduced at 17a and

14a of the Appendix, respectively.

JURISDICTION

The Court of Appeals entered its judgment on

August 20, 2024, and denied rehearing on October

23, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATEMENT

There is a circuit split over whether an

indictment that alleges conduct outside the reach of

the wire fraud statute precludes a district court from

exercising jurisdiction to adjudicate guilt. In those

circuits that hold that such an indictment precludes

the exercise of jurisdiction, the issue remains

appealable notwithstanding an appellate waiver

because jurisdiction is not subject to waiver. In

contrast, in those circuits, like the Eighth Circuit

below, which hold that such indictments do not

preclude the exercise of jurisdiction, the issue is

unreviewable where there has been an appellate

waiver. This Court should grant certiorari and

reverse.

1. In 2019, Roger Paul Bradford was hired by

Vermeer Corporation of Pella, Iowa, (“Vermeer”), to

oversee certain construction projects, most

pertinently, the EcoCenter project. The EcoCenter

project was intended to rebuild one of Vermeer’s

manufacturing facilities that had been destroyed by

a tornado in 2018.

Bradford had a pre-existing relationship with

Viorel Draghia (“Draghia”) who owned a

construction company. In exchange for payments

from Draghia, Bradford steered the contract to

perform masonry work on the EcoCenter project and

other matters to Draghia. While Bradford had

disclosed his pre-existing relationship with Draghia

to Vermeer, neither Bradford nor Draghia disclosed

the existence of the payment agreement. Vermeer

claimed that had it known of this relationship, i.e.,

the “kickback,” 1 it would not have hired Draghia.

2. Once the kickback agreement came to light,

the Government indicted Bradford on one count of

conspiracy to commit wire fraud in violation of 18

U.S.C. § 1349 and one count of attempted

obstruction of an official proceeding in violation of 18

U.S.C. § 1512(c)(2). App. 59a.

Bradford thereafter entered a Plea Agreement

with the Government wherein he agreed to plead

guilty to the wire fraud count in exchange for the

government dismissing the obstruction count. App.

35a. As Part of the Plea Agreement, Bradford also

1 Under federal law, kickbacks are not illegal except in two

well-defined instances not applicable here: health care fraud,

and government contracts. See 18 U.S.C. § 874; 41 U.S.C. §

8702; 42 U.S.C. § 1320a-7b(b). The term “kickback,” therefore,

is used solely for ease of reference to the secret agreement and

should not be read to concede a violation of federal law.

agreed to waive his right to appeal his conviction.

App. 54a.

Importantly, the Government conceded that its

prosecution of Bradford rested on the “right to

control” theory of fraud, at least in part. This Court

defines the “right to control” theory of fraud as a

“scheme[] to deprive the victim of potentially

valuable economic information necessary to make

discretionary economic decisions.” Ciminelli v.

United States, 598 U.S. 306, 309 (2023) (internal

quotation marks and citations omitted). Here, the

valuable economic information was the existence of

the secret “kickback” agreement.

3. On May 4, 2023, the district court sentenced

Bradford to 20 months’ imprisonment and $23,000 in

restitution.

Exactly one week after sentencing, this Court

issued its opinion in Ciminelli unanimously holding

that the “the right-to-control theory cannot form the

basis for a conviction under the federal fraud

statutes.” Id. at 316.

Shortly thereafter, Bradford brought three postsentencing motions one of which was to dismiss the

indictment pursuant to Fed. R. Crim. Proc.

12(b)(3)(B). On June 7, 2023, the district court

denied all three motions for lack of jurisdiction since

Bradford had already filed his notice of appeal. App.

14a.

4. On appeal, Bradford argued inter alia that

because the Government conceded it had prosecuted

him under the right to control theory, it was error for

the district court to deny his motion to dismiss the

indictment in light of Ciminelli. Because the

indictment failed to allege an offense against the

United States as a result of Ciminelli, the district

court lacked jurisdiction to adjudicate Bradford’s

guilt. Therefore, as Bradford was asserting a nonwaivable jurisdictional challenge, the appellate

waiver did not apply.

The Court of Appeals, however, declined to reach

the Ciminelli issue because, citing this Court’s

decision in United States v. Cotton, 535 U.S. 625

(2002), “[t]he purported defect in the Indictment that

Bradford urges is non-jurisdictional and the

challenge to his conviction is covered by the valid

and enforceable appeal waiver.” App. 8a (emphasis

added).

Bradford sought rehearing en banc and panel

rehearing, both of which were summarily denied.

App. 33a.

REASONS FOR GRANTING THE WRIT

Federal courts are courts of limited jurisdiction

and “[o]nly Congress may determine a lower federal

court’s subject-matter jurisdiction.” Kontrick v.

Ryan, 540 U.S. 443, 452 (2004) (emphasis added).

Accordingly, “the district courts may not exercise

jurisdiction absent a statutory basis.” Exxon Mobil

Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552

(2005).

An indictment invokes the limited jurisdiction of

federal courts for prosecution of crimes against the

United States. 18 U.S.C. § 3231. While “[i]t is

generally sufficient that an indictment set forth the

offense in the words of the statute itself, . . . ‘it must

be accompanied with such a statement of the facts

and circumstances as will inform the accused of the

specific offence, coming under the general

description, with which he is charged.’” Hamling v.

United States, 418 U.S. 87, 117-118 (1974) (quoting

United States v. Hess, 124 U.S. 483, 487 (1888)).

The question for this Court to resolve is whether

a statement of facts that alleges a non-offense fails

to invoke the limited jurisdiction of the district court

notwithstanding the defendant’s unconditional

guilty plea. Put another way, is a challenge to an

indictment’s failure to set forth facts and

circumstances constituting a federal criminal offense

jurisdictional in nature and thus cannot be waived?

In United States v. Cotton, 535 U.S. 625 (2002),

this Court overruled Ex parte Bain, 121 U.S. 1

(1887), which had held that a defective indictment

deprives a court of jurisdiction, i.e., “its power to

adjudicate a case.” In Cotton, the defect was the

omission of a sentencing factor, specifically, the drug

amount, that increased the statutory maximum

penalty. This Court held that such an omission in

the indictment was not jurisdictional in nature.

Cotton, 535 U.S. at 631 (“indictment omissions [do

not] deprive a court of jurisdiction”).

This Court, however, did not reach the issue in

Cotton squarely presented here: whether an

indictment that “affirmatively allege[s] facts that

conclusively negated the existence of any offense

against the laws of the United States” fails to invoke

a district court’s jurisdiction. United States v. Brown,

752 F.3d 1344, 1353 (11th Cir. 2014).

To be sure, this Court has reached a closely

related issue: whether the constitutionality of a

statute can still be challenged notwithstanding an

unconditional guilty plea. In Class v. United States,

583 U.S. 174 (2018), this Court answered that

question in the affirmative. Beginning with a review

of the history of plea agreements, this Court first

observed that it has long been the law that “‘if the

facts alleged and admitted [in the plea agreement]

do not constitute a crime against the laws of the

Commonwealth, the defendant is entitled to be

discharged.’” Id. at 180 (quoting Commonwealth v.

Hinds, 101 Mass. 209, 210 (1869)).

This Court then reviewed and re-affirmed the socalled Menna-Blackledge doctrine, 2 which “teach[es]

that a plea of guilty to a charge does not waive a

claim that—judged on its face—the charge is one

which the State may not constitutionally prosecute.”

Class, 583 U.S. at 179. Accordingly, this Court held

that

the claims at issue here do not fall

within any of the categories of claims

that Class’ plea agreement forbids him

to raise on direct appeal. They challenge

the Government’s power to criminalize

Class’ (admitted) conduct. They thereby

call into question the Government’s

power to constitutionally prosecute him.

A guilty plea does not bar a direct appeal

in these circumstances.

2 See Menna v. New York, 423 U.S. 61 (1975) (per curiam);

Blackledge v. Perry, 417 U.S. 21 (1974).

Id. at 181-182 (emphasis added; internal

quotation marks and citations omitted).

Thus, the Eighth Circuit’s reading of Cotton in

the case sub judice plainly violates the MennaBlackledge doctrine, which this Court re-affirmed in

Class. While “a valid guilty plea relinquishes any

claim that would contradict the admissions

necessarily made upon entry of a voluntary plea of

guilty,” a claim that “is consistent with [a

defendant’s] admission that he engaged in the

conduct alleged in the indictment” is neither

relinquished by a guilty plea nor an appellate

waiver. Id. at 183. And that is precisely Bradford’s

claim: “no matter how validly his factual guilt is

established,” id. at 179 (internal quotation marks

and citation omitted), his Indictment still failed to

state an offense, which “would extinguish the

government’s power to constitutionally prosecute

[him] if the claim were successful.” Id. at 183.

I. The lower courts are divided over the reach

of Cotton as to whether an indictment that

affirmatively states a non-offense is

jurisdictional in nature.

Since Cotton a split in the circuit courts of

appeals has developed regarding its reach. Some

circuits hold that, in light of Cotton, even where an

indictment affirmatively states a non-offense it still

is not fatal to a district court exercising jurisdiction

over the prosecution. In those circuits—the Second,

Sixth, Tenth and now the Eighth—an appellate

waiver places the prosecution and sentencing of

defendants for non-crimes beyond appellate review,

thus violating the precept that the federal district

courts are courts of limited jurisdiction granted only

by Congress. In those circuits, a poorly drafted

indictment by a single Assistant United States

Attorney is enough to invoke the jurisdiction of the

district courts.

Other circuits, namely, the First, Fifth, Ninth

and Eleventh Circuits, have distinguished Cotton

holding that an indictment that affirmatively sets

forth a non-offense fails to invoke the limited

jurisdiction of the district courts. Therefore, whether

the district court legitimately exercised its

jurisdiction over the prosecution can be appealed

regardless of any appellate waiver thus ensuring

fidelity to the limited jurisdiction of district courts

and the Menna-Blackledge doctrine.

This case provides the perfect vehicle for the

Court to resolve this critically important conflict.

A. The First, Fifth, Ninth and Eleventh

Circuits hold that an indictment that

fails to state an offense fails to invoke a

district court’s jurisdiction.

The leading decision recognizing that an

indictment that affirmatively states a non-offense

cannot invoke a district court’s jurisdiction (and thus

evade appellate waiver) is the Eleventh Circuit’s in

United States v. Peter, 310 F.3d 709 (11th Cir. 2002).

Decided just over five months after Cotton, Peter

recognized “the distinction between indictment

omissions [as was the case in Cotton] and the

affirmative allegation of specific conduct that is not

proscribed by the charging statute.” Id. at 714.

In Peter, “[t]he indictment charged Peter with

making misrepresentations in license applications

he mailed to a Florida state agency.” Id. at 715.

Peter then pled guilty to a single RICO count where

the predicate crime was mail fraud pursuant to 18

U.S.C. § 1341. Years later and after service of his

sentence had been completed, this Court held in

Cleveland v. United States, 531 U.S. 12 (2000) that

state licenses do not constitute property for purposes

of mail fraud. Peter thereafter sought a writ of error

coram nobis to invalidate the judgment because, in

light of Cleveland, “his conduct was never a crime

under § 1341” as “[d]ecisions of the Supreme Court

construing substantive federal criminal statutes

must be given retroactive effect.” Peter, 310 F.3d at

711 (citing Bousley v. United States, 523 U.S. 614,

620-21 (1998)).

The district court, however, summarily denied

the writ. On appeal, the Eleventh Circuit reversed

holding “that the error demonstrated by Peter is of a

kind [i.e., jurisdictional,] that warrants relief despite

his decision not to contest the government’s charge

at the time of his plea.” Id. Accordingly, the Eleventh

Circuit ordered the writ to issue because “[w]hen a

court without jurisdiction convicts and sentences a

defendant, the conviction and sentence are void from

their inception and remain void long after a

defendant has fully suffered their direct force.” Id. at

715.

In reaching this holding, the Eleventh Circuit

distinguished Cotton. According to the Eleventh

Circuit,

the error held not to be “jurisdictional”

in Cotton involved only an omission from

the indictment: the failure to allege a

fact requisite to the imposition of

defendants’ sentences, namely, their

trade in a threshold quantity of cocaine

base. . . . Unlike the error asserted here,

there was no claim in Cotton that the

indictment consisted only of specific

conduct that, as a matter of law, was

outside the sweep of the charging

statute. Rather, the conviction reviewed

in Cotton had been obtained on an

indictment

that

unquestionably

described the offense of conspiring to

distribute and to possess with intent to

distribute cocaine. The indictment

omission went only to the legality of the

defendants' sentences.

Peter, 310 F.3d at 714 (internal quotations marks

and citations omitted).

As the Eleventh Circuit later summarized, there

are essentially three ways an indictment can fail to

state an offense (and thus fail to invoke a district

court’s jurisdiction) as opposed to being merely

“defective” as identified in Cotton:

charging (1) a crime that simply did not

exist in the United States Code, (2)

conduct that undoubtedly fell outside

the sweep of the [criminal] statute, and

(3) a violation of a regulation that was

not intended to be a “law” for purposes of

criminal liability. In those specific and

narrow circumstances, a district court

indeed lacks subject-matter jurisdiction

because the indictment fails to invoke

the district court’s statutory authority

under 18 U.S.C. § 3231 over “offenses

against the laws of the United States.”

United States v. Brown, 752 F.3d 1344, 1353 (11th

Cir. 2014) (citations omitted).

In so holding the Eleventh Circuit in Peter and

Brown cited to United States v. Meacham, 626 F.2d

503 (5th Cir. 1980) wherein the Fifth Circuit held

that:

the objection that the indictment fails to

charge an offense is not waived by a

guilty plea. The violation of Meacham’s

right to be free of prosecution for a

nonoffense would bar his conviction even

if his ‘factual guilt’ had been established

validly. The entry of a guilty plea does

not act as a waiver of jurisdictional

defects such as an indictment’s failure to

charge an offense. Meacham’s guilty plea

does not bar reversal of his conviction.

Id. at 510 (citations omitted; emphasis added). 3

3 As Meacham predates Cotton, subsequent panels of the Fifth

Circuit have questioned its continuing validity, e.g., United

States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013), but none

have expressly overruled it. Indeed, Meacham continues to be

cited as authority by courts within the Fifth Circuit. See, e.g.,

United States v. Cabello, 33 F.4th 281, 286 (5th Cir. 2022);

Ornelas-Castro v. United States, Nos. 3:20-cv-2165-K and 3:07cr-197-K, 2020 U.S. Dist. LEXIS 233119, *5, 2020 WL 7321059

The Eleventh Circuit in Peter also relied on

United States v. Caperell, 938 F.2d 975 (9th Cir.

1991) wherein the Ninth Circuit reiterated its longheld position that claims “that the indictment fails to

state an offense are jurisdictional claims not waived

by the guilty plea.” Id. at 977 (internal quotation

marks and citations omitted). Caperell remains the

law of that Circuit. See United States v. Marin, 90

F.4th 1235, 1238 n.3 (9th Cir. 2024).

Finally, the First Circuit has followed the

Eleventh Circuit’s decision in Peter to hold that “[a]

federal court . . . lacks jurisdiction to enter a

judgment of conviction when the indictment charges

no offense under federal law whatsoever.” United

States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003). 4

B. The Second, Sixth and Tenth Circuits

interpret Cotton to allow for the

prosecution of non-crimes in violation of

the limited jurisdiction bestowed on the

district courts by Congress.

On the other side of the ledger, the Second, Sixth

and Tenth Circuits have held that, in light of Cotton,

(N.D. Tex. Dec. 11, 2020).

4 In United States v. George, 676 F.3d 249 (1st Cir. 2012), the

First Circuit criticized its prior holding in Rosa-Ortiz, stating

that “the Rosa-Ortiz court’s statement must be regarded as an

awkward locution. That locution used the word ‘jurisdiction’ to

refer to what the court considered a non-waivable defect, not to

the district court’s power to adjudicate the case.” George, 676

F.3d at 260 (emphasis added; citation omitted). George

nonetheless is still consistent with the position that an

indictment that alleges facts that do not constitute a federal

offense is a “non-waivable defect.”

even an indictment that affirmatively alleges a nonoffense does not remove a district court’s jurisdiction

to adjudicate the ersatz crime. See United States v.

Aquart, 92 F.4th 77, 90 (2d Cir. 2024) (“whether

alleged conduct constitutes the charged offense is a

non-jurisdictional question”); United States v. Ellis,

115 F.4th 497, 504 (6th Cir. 2024) (an indictment’s

failure to state an offense “goes only to the merits of

the case”) (quoting Cotton, 535 U.S. at 631); United

States v. De Vaughn, 694 F.3d 1141, 1149 (10th Cir.

2012) (“We read Cotton’s holding that indictment

defects are not jurisdictional to include both

omission from the indictment and arguments that

the indictment does not charge a crime against the

United States.”) (Cleaned up).

II. The decision below is unconstitutional, this

is an important issue involving a circuit split,

and this case is an excellent vehicle for

resolving it.

Certiorari is also warranted because the Eighth

Circuit erred in holding that Bradford’s argument

that the Indictment failed to state an offense in light

of Ciminelli was subsumed by his appellate waiver.

This Court has effectively held as much when, in

Class, it reaffirmed the Menna-Blackledge doctrine.

The First, Fifth, Ninth and Eleventh Circuits not

only are on the right side of the Menna-Blackledge

doctrine but correctly understood that Cotton does

not go as far as the Second, Sixth, Eighth and Tenth

Circuits would have it go. To extend Cotton that far

violates the Menna-Blackledge doctrine.

At its core, the Eight Circuit’s holding fails to

respect the limited jurisdiction of the federal courts,

and more ominously, invites Government abuse in

the prosecution of literal non-crimes. As 18 U.S.C. §

3231 expressly holds, “district courts of the United

States shall have original jurisdiction . . . of all

offenses against the laws of the United States.”

(Emphasis added). Ergo, the prosecution of an

offense that is not against the laws of the United

States cannot and does not invoke the original

jurisdiction of the district courts. To hold otherwise,

is to invite truly excessive over-reach by the

Government by hauling defendants into the district

courts to answer for what?

The specter of Government overreach has been

especially recognized by this Court in several recent

decisions reining in the Government prosecution of

economic offenses. As Justice Jackson observed in

her 2023 dissent in United States v. Hansen, “[i]n its

role as prosecutor, the Government often stakes out

a maximalist position, only later to concede limits

when the statute upon which it relies might be

struck down entirely and the Government finds itself

on its back foot.” United States v. Hansen, 599 U.S.

762, 810 (2023) (Jackson, J., dissenting).

The same is true where this Court strikes down

how a statute might be violated. This is precisely

what this Court did in Ciminelli, which invalidated

the right-to-control theory of fraud. Ciminelli, 598

U.S. at 306. As this Court correctly observed, “the

right-to-control theory vastly expands federal

jurisdiction without statutory authorization” making

“almost any deceptive act . . . criminal.” Id. at 315.

Likewise, in Percoco v. United States, 598 U.S.

319 (2023), this Court held that private citizens do

not owe a duty to render honest services to the

government, and so a private citizen’s failure to do so

does not constitute a crime. In Dubin v. United

States, this Court held in the context of aggravated

identify theft that a misuse of another’s means of

identification must go to the crux of what makes the

underlying offense criminal. 599 U.S. 110 (2023).

More recently, this Court held in Snyder v. United

States, that 18 U.S.C. § 666 does not criminalize

gratuities, only bribes. 144 S. Ct. 1947 (2024). And

finally, in Fischer v. United States, this Court held

that obstruction of justice under 18 U.S.C. §

1512(c)(2) is limited to the impairment of records,

documents or other tangible evidence. 144 S. Ct.

2176 (2024).

All these cases limit how a criminal statute can

be violated. Thus, an indictment that factually

alleges the defendant committed wire fraud under a

right-to-control theory would be affirmatively

asserting the defendant committed a non-crime,

which is qualitatively different than an indictment

omitting an element of wire fraud that otherwise

proceeded under a traditional property interest

theory.

Thus, if the reading of Cotton advanced by the

Second, Sixth, Eighth and Tenth is to persist, this

Court’s efforts at curtailing Government overreach

will be for naught, at least in those circuits. And

fidelity to the limited jurisdiction of district courts

will continue to erode in favor of abuse by the

Executive.

As this Court has correctly recognized, “criminal

justice today is for the most part a system of pleas,

not a system of trials.” Lafler v. Cooper, 566 U.S.

156, 170 (2012). Indeed, the vast majority of

convictions are by way of guilty pleas, 5 and most

guilty pleas are entered pursuant to plea agreements

that contain an appellate waiver. 6 If an indictment

alleges conduct outside the reach of a criminal

statute, then at least in the Second, Sixth, Eight and

Tenth Circuits, the prosecution and sentencing of

individuals for non-offenses will continue to remain

beyond appellate review in most cases. Thousands of

defendants—just like Mr. Bradford now before this

Court—will be required to answer for and serve

prison sentences for ostensible “crimes” as alleged in

charging instruments which this Court has

otherwise held do not in fact constitute any crime.

This case thus presents the perfect vehicle for

resolving the circuit split and to clarify this Court’s

holding in Cotton. The parties’ dispute about

whether Bradford’s Indictment actually alleged an

offense against the United States in light of

Ciminelli can be resolved by the lower courts on

remand.

5 According to U.S. Sentencing Commission’s 2023 Sourcebook

of Federal Sentencing Statistics, of the 64,124 sentences

imposed in fiscal year 2023, 97.2% were the result of a guilty

plea. Id. tbl. 11, https://www.ussc.gov/sites/default/files/pdf/

research-and-publications/annual-reports-and-sourcebooks/

2023/Table11.pdf.

6 According to one empirical study, approximately two-thirds of

plea agreements contain appellate waivers. See Nancy J. King

and Michael E. O’Neill, Appeal Waivers and the Future of

Sentencing Policy, 55 Duke L.J. 209, 212 (2005).

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,