Rein em in

Last week I posted about the First Circuit's big decision in Varsity Blues, reining in a rogue federal prosecution.  

The hits keep coming -- this time the Supreme Court unanimously reversed the Second Circuit's "right-to-control" theory which they have been using to punish defendants for decades.  The case is Ciminelli v. United States.  Here's the intro to SCOTUSblog summary:

For decades, the Supreme Court has steadily narrowed the scope of the federal criminal wire fraud statutes, and Thursday’s decision in Ciminelli v. United States is no exception. The court held that the federal criminal wire fraud statutes do not incorporate a “right to control” theory of fraud. The court referenced both federalism and overcriminalization concerns in narrowing the scope of the wire fraud statutes, pushing federal prosecutors to be more precise in articulating fraud cases against suspicious state contractor activity. As Justice Samuel Alito’s concurrence explains, though, the precise outcome for Louis Ciminelli himself or others accused of fraud is less clear.

And in another case, the High Court reversed an honest services conviction in Percoco v. United States.  From SCOTUSblog because the jury instructions were wrong:

Before his 2018 trial, Percoco asked the judge to dismiss the “honest services” charge against him, arguing that a private citizen cannot be convicted of depriving the public of its right to honest services. The court rejected that request, and Percoco was convicted and sentenced to a total of six years in prison. The U.S. Court of Appeals for the 2nd Circuit upheld his conviction.

In an opinion by Justice Samuel Alito, the Supreme Court on Thursday threw out Percoco’s conviction. Like the lower courts before them, the justices declined to adopt a bright-line rule holding that private citizens can never have the kind of fiduciary responsibility to the public that would allow them to be held liable for depriving the public of its right to their honest services.

Percoco’s conviction still cannot stand, the justices ruled, because the instructions that the trial judge gave to the jury in his case were too vague. The judge told the jury, Alito observed, that Percoco “owed a duty of honest services to the public if (1) he ‘dominated and controlled any governmental business’ and (2) ‘people working in the government actually relied on him because of’” his relationship with the government. But that standard does not, Alito continued, provide enough information about what conduct is or is not allowed, nor does it shield against arbitrary enforcement by prosecutors.

So I urge district judges again -- it's okay to grant motions to dismiss and Rule 29s!  It's okay to give defense instructions and not the patterns.  The Supreme Court has your back.