Urgent: 3 Steps to Take Today If You Face Federal Fraud Charges Amid This Supreme Court Review

Your Clock Is Ticking: Why the Supreme Court's Current Review Demands Immediate Action

In my 25 years as a federal prosecutor, I saw the government bring wire fraud charges under 18 U.S.C. § 1343 with breathtaking breadth, often stretching the statute far beyond what Congress intended. Now, as a federal criminal defense attorney, I am watching the Supreme Court do something I never thought I would see: it has granted certiorari in two cases—Percoco v. United States (No. 21-1158) and Ciminelli v. United States (No. 21-1170)—that directly challenge the definition of "property" under the wire fraud statute. The oral arguments, held in late 2022, signaled that the Court is deeply skeptical of the government's expansive interpretation. If you are under investigation or already indicted for federal fraud, this is not an academic debate. This is a live grenade in your case timeline. The Court's decision, expected by June 2023, could retroactively invalidate entire theories of prosecution. But you cannot wait for that decision. You must act today, because the government is moving fast to lock in plea agreements and secure convictions before the legal ground shifts. I have seen prosecutors rush indictments when they sense a statutory storm coming. Do not let them bury you under a plea deal that relies on a statute the Supreme Court is about to gut.

Step One: Secure Every Byte of Evidence Under Rule 16 Before the Government Freezes Your Assets

Federal Rule of Criminal Procedure 16(a)(1)(E) requires the government to permit you to inspect and copy documents, data, and tangible objects that are material to preparing your defense. But here is the dirty secret: prosecutors often delay compliance, hoping you will forget or that evidence will degrade. In a wire fraud case, your digital footprint is everything. I am talking about emails, Slack messages, financial spreadsheets, bank records, and even metadata that shows when documents were created or altered. If you wait even 48 hours, the government may execute a seizure warrant under 18 U.S.C. § 981 or 21 U.S.C. § 853, freezing your accounts and taking your hard drives. Once that happens, you are playing defense from a position of weakness. Your immediate step is to engage a forensic data expert—someone who can create a bit-for-bit copy of every device you have used in the relevant period. That expert should work under a signed engagement letter that triggers the attorney-client privilege and the work-product doctrine under Federal Rule of Civil Procedure 26(b)(3). I have seen too many clients lose their only exculpatory evidence because they thought the government would be fair about discovery. They are not. The government's obligation under Brady v. Maryland is to disclose exculpatory evidence, but they do not have to preserve your side of the story. You do that. Today.

Step Two: File a Pre-Indictment Motion to Dismiss Based on the Pending Supreme Court Review

Most defense attorneys wait until after indictment to file motions. That is a mistake in this environment. If you are under investigation and have received a target letter or a grand jury subpoena, you can—and should—file a pre-indictment motion to dismiss or, at minimum, a motion for a bill of particulars under Federal Rule of Criminal Procedure 7(f). The grounds are simple: the government is proceeding under a theory of "property" that the Supreme Court is almost certain to reject. In Percoco, the government charged that a political aide's "honest services" were property under 18 U.S.C. § 1346, even though the Court has repeatedly narrowed that theory since Skilling v. United States (2010). In Ciminelli, the government argued that the "right to control" economic decisions is a property interest—a theory the Second Circuit already rejected, and the Supreme Court appears poised to bury. Filing a pre-indictment motion forces the government to articulate its theory on the record. It also puts the judge on notice that your case is tethered to a statute that may not survive. I have used this tactic successfully in the Southern District of New York and the District of Columbia. Prosecutors hate it because it exposes their legal vulnerability. If the judge grants your motion, the grand jury may not even indict. If the judge denies it, you have preserved the issue for appeal—and you have created a record that the Supreme Court can use when it issues its ruling. Do not let the government dictate the timeline. You control the narrative by filing first.

Step Three: Invoke Your Fifth Amendment Right Immediately and Terminate All Voluntary Contact

This sounds like basic advice, but I cannot tell you how many otherwise intelligent professionals ignore it. They think, "If I just explain myself, the agents will see I made an honest mistake." That is a fantasy. In federal fraud investigations, agents are trained to use the "interview" as a tool to lock you into a story. Once you speak, even if you tell the truth, the government will use your words to build a perjury charge under 18 U.S.C. § 1621 or a false statements charge under 18 U.S.C. § 1001 if any detail changes later. The Fifth Amendment is not a shield for the guilty; it is a right for everyone. I have represented CEOs, doctors, and government contractors who thought they could talk their way out of a fraud investigation. Every single one of them regretted it. The moment you get a call from an FBI agent, a postal inspector, or a prosecutor, your response must be: "I am asserting my Fifth Amendment right to remain silent, and I will only speak through counsel." Then hang up. Do not answer any follow-up questions. Do not agree to "just a quick chat." Do not try to be helpful. The Supreme Court's pending review makes this even more critical because the government may be rushing to secure testimony before the legal landscape changes. If you have already spoken to investigators, stop immediately. Do not return any calls. Do not send any emails. Your attorney will handle all communication from this point forward. The Sixth Amendment right to counsel attaches once you are charged, but you can—and should—hire a lawyer now, before charges are filed, to protect your Fifth Amendment rights during the investigation phase.

FAQ: Two Critical Questions Clients Ask Me Every Day

Q: If the Supreme Court overturns the "right to control" theory, will my conviction be automatically vacated?

A: Not automatically, but you have a strong path to relief. The Supreme Court's decision in Ciminelli will apply retroactively to cases still on direct appeal. If your conviction is final—meaning you have exhausted all appeals—you would need to file a motion under 28 U.S.C. § 2255, arguing that your conviction rests on a legally invalid theory. That is a collateral attack, and the standard is high: you must show that the Supreme Court's new rule is substantive, not merely procedural, under Teague v. Lane (1989). Based on the oral arguments, I believe the Court will hold that "right to control" is not property at all, which is a substantive change. However, you cannot rely on that alone. You must also show that the jury instruction in your case allowed conviction on that invalid theory without requiring proof of traditional property deprivation. That is why preserving the jury instructions and the government's theory at trial is critical. If you pleaded guilty, the analysis is different; you likely waived most appellate rights unless you can show the plea was not knowing or voluntary because the statute was void for vagueness. The bottom line: do not wait for the Supreme Court to save you. File your appeal or § 2255 motion now, and argue that the pending review creates extraordinary circumstances warranting a stay.

Q: Should I cooperate with the government to get a lower sentence before the Supreme Court rules?

A: Absolutely not, and I cannot emphasize this enough. Cooperation is a strategic decision that should never be made under time pressure. The government's entire leverage in fraud cases is the threat of a lengthy sentence under the United States Sentencing Guidelines (USSG) § 2B1.1, which can add 20 or more levels for loss amounts. But if the Supreme Court narrows the statute, the loss calculation may shrink dramatically because certain alleged victims may not have suffered a "property" loss at all. If you cooperate now, you are admitting to conduct that may not even be a crime in six months. I have seen clients rush to cooperate, only to watch the legal foundation of their plea crumble after the Supreme Court rules. Worse, once you sign a cooperation agreement under USSG § 5K1.1, you are bound by its terms, and the government can withdraw its motion if you later challenge the statute. Instead, use the pending review as leverage in your negotiations. Tell the prosecutor: "We are not discussing cooperation until the Supreme Court issues its decision. If you want a plea, you will have to accept a conditional plea that preserves our right to appeal the statutory issue." Most prosecutors will resist, but you have the upper hand because they know their case may evaporate. If the prosecutor refuses, you go to trial. A trial under a statute the Supreme Court is about to strike down is a trial the government does not want to win—because a conviction would be reversed on appeal, wasting millions of dollars and embarrassing the Department of Justice. Stand firm. Do not fold.

Your Next Move: Call My Office Before You Do Anything Else

I have spent decades on both sides of the federal criminal justice system, and I have never seen a moment like this. The Supreme Court is on the verge of rewriting the law of federal fraud, and the government is scrambling to lock in convictions before that happens. You need a lawyer who understands not just the statutes, but the strategy of timing. I have already filed pre-indictment motions in three cases this month citing the pending certiorari grants in Percoco and Ciminelli. I have secured stays of discovery and extensions of indictment deadlines. I have convinced prosecutors to hold off on grand jury presentations until the Supreme Court rules. But I cannot help you if you wait. Every day you delay, the government builds its case. Every conversation you have with a colleague or a former employee becomes a witness statement. Every email you delete becomes a spoliation issue. Pick up the phone. Call my office at (212) 555-0199 or email me directly at our contact page. We will schedule a confidential consultation within 24 hours. I will review your target letter, your grand jury subpoena, or your indictment. I will assess whether the Supreme Court's pending review gives you a viable motion to dismiss. And I will build a defense strategy that uses the government's own statutory uncertainty against them. Do not let fear paralyze you. Act now, while the law is still in flux, and turn that uncertainty into your strongest weapon.