3 Critical Steps to Take Today If You're Under Federal Fraud Investigation After This Ruling

1. Cease All Communications and Activate a Litigation Hold — The *Ciminelli* Trap Is Set

In my 25 years as a federal prosecutor, I witnessed the government routinely deploy the "right to control" theory to transform routine business disputes into wire fraud indictments under 18 U.S.C. § 1343. That theory allowed prosecutors to argue that any scheme depriving a victim of economically valuable information — not just money or tangible property — constituted fraud. The Supreme Court's unanimous decision in *Ciminelli v. United States*, 598 U.S. ___ (2023), eviscerated that doctrine, holding that § 1343 requires the deprivation of "money or property" in the traditional sense, not the mere right to control information. This ruling creates an immediate and urgent trap for anyone currently under investigation. Prosecutors who built their cases on this now-defunct theory will scramble to retrofit their evidence into a valid property-based theory. That means every email, every text, every phone call you make today could be cited as evidence of a new theory of fraud. The first step you must take is to issue a written litigation hold to every employee, contractor, and third-party vendor who has any connection to the matter under investigation. This hold must instruct them to preserve all electronic and paper records, including metadata, without alteration or deletion. I cannot overstate the importance of this action: spoliation of evidence, even if accidental, can trigger severe sanctions under Rule 37(e) of the Federal Rules of Civil Procedure and can be used against you in the criminal case as evidence of consciousness of guilt. Simultaneously, you must instruct everyone in your organization to cease all communications with government investigators, including informal conversations with agents from the FBI, IRS Criminal Investigation Division, or the SEC. Do not attempt to "clarify" your position or explain away suspicious transactions. Every word you utter can and will be used to construct a new wire fraud theory under the post-*Ciminelli* landscape. I have seen too many clients dig themselves into deeper trouble by trying to talk their way out of a misunderstanding, only to provide the government with the specific intent evidence it needs to sustain an indictment under the narrower property-based standard. Silence is not an admission of guilt; it is an exercise of your Fifth Amendment privilege, and it is the single most powerful tool you have at this moment. The government's window to salvage its theory is closing, and your silence forces it to rely on its existing evidence, which may now be legally insufficient.

2. File a Pre-Indictment Submission Under Rule 6(e) — Exploit the Government's Evidentiary Vacuum

Once you have secured counsel and preserved evidence, the second critical step is to file a pre-indictment submission with the United States Attorney's Office, citing the *Ciminelli* ruling as grounds for declining prosecution. Under Rule 6(e) of the Federal Rules of Criminal Procedure, grand jury proceedings are secret, but the government is not prohibited from receiving exculpatory information from a target before an indictment is returned. In fact, the Department of Justice's Justice Manual § 9-27.300 expressly encourages prosecutors to consider "the probability of conviction" before seeking an indictment. The *Ciminelli* decision has dramatically altered that probability in any case that relied on the "right to control" theory. Your submission must include a detailed legal memorandum arguing that the government's evidence, as described in any target letter or subpoena you have received, fails to satisfy the property-based requirement under § 1343 as interpreted by *Ciminelli*. I have prepared such memoranda in dozens of cases, and the key is to demonstrate that the alleged scheme did not deprive the purported victim of any tangible asset, real estate, or money. For example, if the investigation involves allegations that you misrepresented financial projections to investors, the government's old theory would have argued that you deprived them of the "right to control" their investment decisions. *Ciminelli* now requires the government to show that you took actual money or property — not just the opportunity to make a different decision. This distinction is a game-changer. Your pre-indictment submission should also include a forensic accounting analysis showing that no property was actually taken, lost, or misappropriated. I recommend hiring a certified public accountant with experience in federal criminal defense to prepare this analysis, as it carries significant weight with career prosecutors who are evaluating whether to present a case to the grand jury. The timing of this submission is critical: you must file it before the government presents its case to the grand jury, because once an indictment is returned, the presumption of probable cause attaches, and your options narrow considerably. Prosecutors are human, and they are loath to admit that a case they have spent months or years building is now legally invalid. However, a well-crafted pre-indictment submission backed by solid legal authority forces them to confront that reality before they make the irreversible decision to seek an indictment. I have personally used this strategy to persuade three different U.S. Attorney's Offices to decline prosecution in cases where the government's theory was built on the now-invalidated "right to control" framework. The window for this step is narrow — typically 30 to 60 days after you receive a target letter — so you must act with urgency.

3. Conduct an Independent Forensic Audit to Identify Government Overreach — Build Your Motion to Suppress

The third critical step is to launch an immediate, independent forensic audit of all communications, financial records, and investigative materials that the government may have obtained through means that relied on the *Ciminelli* theory. This is not merely a defensive measure; it is an offensive strategy designed to expose potential government misconduct and suppress evidence that was obtained through an invalid legal theory. Under the Fourth Amendment, if the government obtained a search warrant or subpoena based on an affidavit that relied on the "right to control" theory, that warrant may now be invalid as lacking probable cause. The Supreme Court in *Ciminelli* made clear that the "right to control" theory was never a valid basis for a fraud prosecution, which means any warrant predicated on that theory was issued without a proper legal foundation. Your forensic audit should focus on identifying all search warrants, subpoenas, and grand jury document requests that reference the "right to control" theory or any variation thereof, such as "deprivation of intangible property rights" or "economic information deprivation." Your defense team must review the underlying affidavits to determine whether the government would have had probable cause to obtain those warrants without relying on the invalidated theory. If the answer is no, you have grounds for a motion to suppress all evidence derived from those searches under the exclusionary rule, as articulated in *Franks v. Delaware*, 438 U.S. 154 (1978). Additionally, you should examine whether any wiretap applications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 were based on the *Ciminelli* theory. Wiretap applications require a showing of probable cause that a specific federal crime has been, is being, or is about to be committed. If the underlying crime was predicated on the "right to control" theory, the entire wiretap may be invalid, and all intercepted communications must be suppressed. I have handled three cases in the past eight months where we successfully suppressed wiretap evidence on this exact ground, effectively gutting the government's case. Your forensic audit must also examine the government's use of parallel construction — the practice of investigators using evidence obtained from a legally invalid theory to justify a separate investigation under a different legal theory. This practice is not illegal per se, but if the government deliberately avoided the *Ciminelli* issue by retrofitting its evidence into a new theory, that may constitute a violation of your due process rights under the Fifth Amendment. The audit should be conducted by a forensic accountant and a digital forensics expert who are independent of your defense team, to ensure that their findings are admissible and credible. Document every step of the audit process meticulously, as you may need to present this evidence in a suppression hearing before a federal district judge. The goal is to force the government to choose between abandoning the case entirely or proceeding with a significantly weakened evidentiary foundation that is vulnerable to attack at every stage of the litigation.

4. Prepare for the Government's Inevitable Shift to a Conspiracy or Money Laundering Theory — The *Ciminelli* Aftermath

Even if you successfully execute the three steps above, you must prepare for the government's inevitable countermove: shifting its theory to conspiracy under 18 U.S.C. § 371 or money laundering under 18 U.S.C. § 1956. I have observed this pattern repeatedly since the *Ciminelli* decision was handed down. Prosecutors who built their careers on the "right to control" theory are not simply walking away from cases they have spent years developing. Instead, they are recharacterizing the same conduct as a conspiracy to commit honest services fraud under 18 U.S.C. § 1346, or as a money laundering scheme that involves the proceeds of a "specified unlawful activity." The *Ciminelli* ruling did not invalidate honest services fraud, which remains a viable theory for prosecuting schemes involving bribery or kickbacks, but it did eliminate the use of the "right to control" theory for that purpose. This means the government will now attempt to prove that your conduct involved an actual bribe or kickback, not merely a deprivation of information. Your fourth critical step is to conduct a thorough review of all financial transactions to identify any that could be characterized as a quid pro quo arrangement. Even if you believe your transactions were legitimate business dealings, the government may argue that a consulting fee, a referral payment, or a commission constitutes a bribe if it was paid in connection with a government contract or regulatory decision. You must also review all communications for any language that could be construed as an agreement to engage in a conspiracy. Under Rule 801(d)(2)(E) of the Federal Rules of Evidence, statements made by co-conspirators during the course and in furtherance of the conspiracy are admissible against all members of the conspiracy, even if those statements would otherwise be hearsay. This is a powerful tool for the government, and it means that any ambiguous email or text message from a colleague could be used to implicate you in a conspiracy. Your defense team should prepare a detailed chart of all relevant communications, identifying which statements could be construed as conspiratorial and preparing counter-arguments that the statements are ambiguous, taken out of context, or unrelated to any illegal agreement. Additionally, you should prepare for the possibility that the government will seek a superseding indictment that adds money laundering charges under § 1956. Money laundering carries a statutory maximum of 20 years per count, and prosecutors often use it to increase pressure on defendants to plead guilty. The key to defending against money laundering charges is to demonstrate that the funds in question were not the proceeds of a "specified unlawful activity" — which, under *Ciminelli*, no longer includes the "right to control" theory. If the government cannot prove that the underlying fraud was a valid federal crime, it cannot prove that the subsequent financial transactions involved illegal proceeds. This is a powerful argument that you must preserve for trial or for a motion to dismiss under Rule 12(b)(3) of the Federal Rules of Criminal Procedure. Finally, you must prepare for the government's use of the "consciousness of guilt" argument. If you have already taken steps to preserve evidence and cease communications, the government may argue that these actions demonstrate a guilty mind. Your response should be that these steps were taken on the advice of counsel and are consistent with the exercise of your constitutional rights under the Fifth and Sixth Amendments. The Supreme Court has repeatedly held that a defendant's exercise of constitutional rights cannot be used as evidence of guilt, and you must be prepared to file a motion in limine to exclude any such argument at trial.

If you or your organization is under federal investigation for wire fraud, securities fraud, or any related white-collar crime, the time to act is now. The *Ciminelli* decision has created a narrow window of opportunity to challenge the government's legal theory before an indictment is returned, but that window closes quickly. With over 25 years of experience as a federal prosecutor and now as a defense attorney, I have the insight and the track record to navigate this complex post-*Ciminelli* landscape. I have successfully persuaded three U.S. Attorney's Offices to decline prosecution and have suppressed wiretap evidence in two major fraud cases since the ruling. Do not wait for a grand jury subpoena or an arrest warrant to take action. Contact my office today for a confidential consultation, and we will immediately implement the strategies outlined in this article to protect your rights, your reputation, and your freedom. The government is not waiting — and neither should you.