United States v. Roy
783 F.3d 418
2d Cir.2015Background
- Emmanuel Roy was tried in the S.D.N.Y. and convicted on five counts: conspiracy to commit wire fraud (18 U.S.C. § 1349), three counts of wire fraud (18 U.S.C. § 1343), and conspiracy to commit wire fraud and bank fraud (18 U.S.C. § 1349).
- The district court did not instruct the jury that an overt act was required to convict on the two § 1349 conspiracy counts.
- Roy was convicted after a seven-day jury trial and sentenced to 87 months’ imprisonment, three years’ supervised release, and a $500 special assessment.
- On appeal Roy argued the omission of an overt-act instruction was erroneous; he raised several additional claims (juror dismissal, reasonable-doubt wording, failure to instruct on factual underpinnings, indictment copy, exclusion of expert testimony) addressed separately.
- The central legal question was whether § 1349 conspiracies require proof of an overt act, an issue of first impression in the Second Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1349 conspiracy requires proof of an overt act | Gov: § 1349 does not expressly require an overt act; no overt-act proof required | Roy: Jury must be instructed that an overt act in furtherance of the conspiracy is required | Held: No overt-act element required for conviction under § 1349; district court did not err |
Key Cases Cited
- Whitfield v. United States, 543 U.S. 209 (2005) (statute lacking explicit overt-act language does not require proof of an overt act)
- United States v. Rogers, 769 F.3d 372 (6th Cir. 2014) (conspiracy under § 1349 does not require an overt act)
- United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. 2014) (same conclusion re: § 1349)
- United States v. Fishman, 645 F.3d 1175 (10th Cir. 2011) (same conclusion re: § 1349)
- United States v. Naiman, 211 F.3d 40 (2d Cir. 2000) (standard for reviewing jury instructions)
- United States v. Applins, 637 F.3d 59 (2d Cir. 2011) (defendant must show requested charge accurately represented law and error was prejudicial)
- United States v. Huezo, 546 F.3d 174 (2d Cir. 2008) (discussed overt-act language in context of § 1956(h), later superseded by Whitfield)