Ciminelli v. United States, 598 U.S. 306

The Buffalo Billion economic-development program was administered by Fort Schuyler; board member Alain Kaloyeros and lobbyist Todd Howe steered opportunities to favored firms.
LPCiminelli (petitioner Ciminelli’s company) paid Howe; Kaloyeros, Howe, and Ciminelli collaborated to design RFPs that made LPCiminelli a “preferred developer,” leading to a $750 million Riverbend contract.
A federal investigation produced an indictment charging Ciminelli and others with wire fraud and conspiracy under 18 U.S.C. §§1343, 1349.
The Government prosecuted solely under the Second Circuit’s “right-to-control” theory: depriving a victim of economically valuable information needed for discretionary economic decisions constitutes property fraud.
The district court instructed the jury that “property” could include the right to control assets via such information; the jury convicted and the Second Circuit affirmed on that theory.
The Supreme Court granted certiorari to decide whether the right-to-control theory is a valid basis for liability under the federal wire-fraud statute.

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Ciminelli)	Held
Whether the Second Circuit’s “right-to-control” theory supports wire-fraud liability	Right-to-control is a cognizable property interest; depriving information ≈ depriving control of assets	The right to control/use information is not "money or property" under §1343	The right-to-control theory is not a valid basis for §1343 liability
Whether the right to valuable economic information is a traditional property interest	Such information is an essential stick in the property bundle and thus protected	Economically valuable information is not a historically recognized property interest	The right to that information is not a traditional property interest and so is not protected
Whether the Court may affirm convictions on an alternative traditional-property theory despite the Gov’t conceding the right-to-control theory is wrong	Jury heard facts that could support a traditional property-fraud theory; Court may affirm on alternative ground	Convictions rested solely on right-to-control theory and related jury instructions; alternative theory was not presented to jury	Court declined to affirm on alternative grounds—appellate courts may not substitute their own factfinding or the jury’s role
Remedy	N/A (Gov’t sought affirmance)	Error in jury instruction and theory requires reversal unless harmless or alternative support exists	Reversed the Second Circuit and remanded for proceedings consistent with opinion

Cleveland v. United States, 531 U.S. 12 (1999) (wire/mail fraud limited to protection of property rights)
McNally v. United States, 483 U.S. 350 (1987) (fraud statutes protect individual property rights; courts had overbroadly protected intangibles)
Skilling v. United States, 561 U.S. 358 (2010) (discussion of courts’ prior expansion to intangible rights)
Carpenter v. United States, 484 U.S. 19 (1987) (property must be an interest long recognized as property)
McCormick v. United States, 500 U.S. 257 (1991) (appellate courts may not affirm convictions on alternative theories requiring factfinding)
Chiarella v. United States, 445 U.S. 222 (1980) (limits on creating new fraud theories without jury findings)
Neder v. United States, 527 U.S. 1 (1999) (omitted elements in jury instruction may be subject to harmless-error analysis)
United States v. Percoco, 13 F.4th 158 (2d Cir. 2021) (articulation of the Second Circuit’s right-to-control theory relied on by the Government)
United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (origin of the Second Circuit’s right-to-control approach)