648 F. App'x 99
2d Cir.2016Background
- Defendant James Tagliaferri was convicted of one count of investment-adviser fraud, one count of securities fraud, four counts of wire fraud, and six counts under the Travel Act; two additional counts were dismissed after a jury deadlock.
- On appeal Tagliaferri challenged sufficiency of the evidence and several jury instructions related to those convictions.
- He argued (a) Travel Act convictions failed because New York’s commercial-bribe-receiving statute requires proof of a bilateral “corrupt agreement,” and (b) the predicate conduct fell outside New York’s territorial jurisdiction.
- He also argued the securities-fraud instruction should have required proof he intended to harm clients, and that wire-fraud instructions (including a “right to control” theory and need for contemplated actual financial loss) were erroneous.
- The Second Circuit treated some arguments as forfeited or waived and reviewed others for plain error, ultimately affirming the convictions in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Travel Act — corrupt agreement under NY commercial-bribe-receiving statute | Gov: NY law permits conviction based on commercial-bribe-receiving without requiring payor to be guilty | Tagliaferri: New York requires a corrupt bilateral agreement (payor and receiver) | Court: Argument was forfeited; even reviewed for plain error, law is unsettled so no plain error; conviction stands |
| Travel Act — territorial reach | Gov: Travel Act imports substantive state offense but not state procedural/jurisdictional rules | Tagliaferri: State jurisdictional limits mean NY courts lacked reach, so Travel Act predicates fail | Court: State jurisdictional limits are procedural; federal court’s territorial reach governed by Constitution and Fed. R. Crim. P.; no clear error; conviction affirmed |
| Securities fraud — intent to harm requirement | Gov: SEC §10(b)/Rule 10b-5 does not require intent to cause actual harm | Tagliaferri: Jury should have been instructed that he must have intended to harm clients | Court: Follows Litvak — intent to harm not required; no error in charging jury |
| Wire fraud — "right to control" theory, actual financial loss, vagueness, constructive amendment | Gov: Deception that deprives victims of the right to control money/valuable economic information suffices without proof of actual loss; instruction was proper and not vague nor a constructive amendment | Tagliaferri: Instruction improperly expanded wire fraud to include mere concealment; required proof of contemplated actual loss; instruction vague and amended indictment | Court: Tagliaferri waived challenge to right-to-control instruction by agreeing at charge conference; precedents do not require contemplated actual loss; instruction not unconstitutionally vague; indictment not constructively amended |
Key Cases Cited
- Blue Tree Hotels Investment (Canada) Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212 (2d Cir. 2004) (discussing commercial-bribery scope in related context)
- People v. Bac Tran, 80 N.Y.2d 170 (N.Y. 1992) (interpreting “agreement or understanding” in bribery statute to permit unilateral payor understanding)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error review requirements)
- Puckett v. United States, 556 U.S. 129 (2009) (clarifying when legal error is "plain")
- United States v. Litvak, 808 F.3d 160 (2d Cir. 2015) (holding intent to harm is not required under §10(b)/Rule 10b-5)
- United States v. Binday, 804 F.3d 558 (2d Cir. 2015) (wire fraud can be based on deprivation of valuable economic information and on right-to-control theory)