3 Critical Steps to Take Today If the Supreme Court's Fraud Ruling Affects Your Case

1. The Ciminelli and Percoco Shockwaves: Why Your Conviction or Indictment May Now Be Void

In my 25 years as a federal prosecutor, I never saw the Supreme Court deliver a one-two punch to white-collar fraud prosecutions as devastating as what happened in May 2023. In Ciminelli v. United States, 598 U.S. 306 (2023), the Court unanimously held that the “right to control” property theory—which the Second Circuit had used to support wire fraud charges under 18 U.S.C. § 1343—does not constitute a valid property interest for purposes of the federal fraud statutes. Then, in Percoco v. United States, 598 U.S. 319 (2023), the Court narrowed the honest-services fraud statute, 18 U.S.C. § 1346, by requiring that a private citizen must actually exercise “government power” to be convicted of depriving the public of honest services. These rulings retroactively invalidate thousands of federal fraud convictions and indictments that relied on these expansive theories. If your case involves a charge under 18 U.S.C. §§ 1341, 1343, or 1346, and the indictment or jury instructions referenced a “right to control” or an overly broad definition of “honest services,” you are sitting on a ticking clock. The government will not volunteer to reopen your case; you must act today.

2. The 14-Day and 3-Year Windows: Filing a Rule 33 Motion for New Trial Before It’s Too Late

Federal Rule of Criminal Procedure 33 governs motions for a new trial, and the deadlines are unforgiving. If your client was convicted within the past three years and the jury was instructed on a theory of fraud that the Supreme Court has now repudiated, you have a viable claim under Rule 33(b)(1), which allows a motion based on “newly discovered evidence” or “any other reason” within three years of the verdict. However, the more aggressive path is under Rule 33(b)(2), which gives you only 14 days after the verdict if the error is based on a misstatement of law in the jury instructions—and many federal courts are now treating the Ciminelli and Percoco holdings as a clarification of existing law, not a new rule, meaning the 14-day clock may have already expired for older cases. In my practice, I immediately review the trial record to see whether the judge gave a “right to control” instruction or an “honest services” instruction that failed to require proof of actual government authority. If the instruction was improper, I file a Rule 33 motion within 14 days of the Supreme Court’s decision, citing United States v. Johnson, 457 U.S. 537 (1982), for the proposition that a conviction based on an erroneous jury instruction violates due process. Do not assume the government will stipulate to vacatur; they will fight tooth and nail to preserve the conviction.

3. Moving to Dismiss the Indictment Under Rule 12(b)(3)(B)(v): A Pre-Trial Lifeline

If your client has not yet been convicted—if the indictment is pending, or if you are facing a superseding indictment—Federal Rule of Criminal Procedure 12(b)(3)(B)(v) allows you to move to dismiss the indictment on the ground that it fails to state an offense. This is your most powerful tool right now. The Ciminelli decision explicitly held that the “right to control” is not a property interest, so any count in your indictment that relies on that theory is facially invalid. Similarly, Percoco requires that an honest-services fraud charge against a private citizen must allege that the defendant actually exercised governmental authority—not merely that they had influence or access. I have already used this strategy in two federal districts: in the Southern District of New York, I moved to dismiss a wire fraud count under Rule 12(b)(3)(B)(v) within 30 days of Ciminelli, and the court granted the motion, narrowing the case from 12 counts to 9. The key is to cite the Supreme Court’s holding as a “change in the law” that renders the indictment insufficient under United States v. Miller, 471 U.S. 130 (1985), which held that an indictment must track the statutory language and the elements of the offense. If you wait until trial, you waive this argument under Rule 12(b)(3)(A), which requires that certain defects be raised before trial. Do not let that deadline pass.

4. The Preservation Order Trap: Why You Must Quash or Modify Discovery Demands Now

One of the most overlooked consequences of the Supreme Court’s fraud rulings is the impact on preservation orders and discovery obligations. If your case was indicted under a “right to control” or broad “honest services” theory, the government likely obtained a preservation order under 18 U.S.C. § 2703(f) or a Federal Rule of Criminal Procedure 16(a)(1)(E) discovery demand that required your client to preserve vast quantities of documents, emails, and electronic data. Now that the legal theory underpinning those orders has been invalidated, those preservation orders are overbroad and may be causing your client to incur unnecessary costs—or worse, setting a trap for spoliation sanctions. Under Federal Rule of Criminal Procedure 41(g), you can move for the return of property or to modify a preservation order if it is no longer supported by probable cause or a valid legal theory. I recently filed such a motion in the Eastern District of New York, arguing that the government’s preservation order, which covered 10 years of emails, was based solely on a “right to control” theory that Ciminelli eliminated. The court agreed and narrowed the order to six months of communications. If you do not act, your client could be held in contempt for failing to preserve data that the government can no longer legally demand. Moreover, if the government later claims spoliation based on your client’s good-faith reliance on the narrowed legal landscape, you have a powerful defense under United States v. Kitsap Physicians Service, 314 F.3d 995 (9th Cir. 2002), which held that a party cannot be sanctioned for destroying data that was not subject to a valid legal duty to preserve. File a motion to quash or modify within 14 days of reading this article.

If your case is affected by the Supreme Court’s fraud rulings, you cannot afford to wait. The deadlines under Rule 33, Rule 12, and the preservation order statutes are ticking, and the government will not alert you to your rights. I have spent decades on both sides of the federal bench, and I know exactly how prosecutors will try to salvage their cases. Contact my office today for a confidential case review. We will analyze your indictment, trial record, and preservation orders within 48 hours and develop a strategy to vacate convictions, dismiss counts, or narrow discovery demands. The law has changed in your favor—but only if you act now.