'Lopez' And 'Kousisis': The Fraud Chronicles Of A Post-'Ciminelli' World

Followers of the long-running series of FIFA prosecutions brought in the Eastern District of New York could be forgiven for feeling a sense of whiplash of late.

First, the district court vacated the convictions of the defendants in United States v. Lopez, an American media executive and a sports marketing agency for bribing FIFA executives and others in exchange for media rights, relying on the Supreme Court's rulings limiting the scope of the wire fraud statute in Ciminelli v. United States and Percoco v. United States.

Then, earlier this year, the Second Circuit reinstated those convictions, rejecting the district court's reasoning. And just recently, in late December, the government, having won its appeal, turned around and filed motions to dismiss the charges against the defendants.

While the saga of this particular case seems to have been brought to an end by the government's decision, it is clear that the limits on wire fraud prosecutions are continuing to evolve, with courts pushing back on further narrowing the scope of the wire fraud statute post-Ciminelli and Percoco.

This means that much will be left to the government's discretion in what to charge and under what theories—and that defense practitioners will be left with uncertainty as they seek to argue on behalf of clients being investigated or charged under wire fraud theories that are very much in flux.

'Ciminelli v. United States'

The Supreme Court's dual decisions in Percoco and Ciminelli dramatically changed the landscape of fraud prosecutions, particularly in the Second Circuit. The defendant in Ciminelli was convicted under the so-called "right to control" theory of wire fraud, which had a long history in the Second Circuit. That theory was based on the idea that "[s]ince a defining feature of most property is the right to control the asset in question," "the property interests protected by the wire fraud statute include the interest of a victim in controlling his or her own assets." United States v. Lebedev, 932 F.3d 40, 48 (2d. Cir. 2019) (alterations omitted).

Accordingly, the Government could "establish wire fraud by showing that the defendant schemed to deprive a victim of potentially valuable economic information necessary to make discretionary economic decisions" about the victim's own property.

In Ciminelli, the defendant was accused of bribing members of the New York state officials to design the process under which lucrative developments contracts were awarded to favor his company. Ciminelli 598 U.S. 309-10. The Second Circuit affirmed his conviction, finding that by "rigging the [contracting process] to favor their companies, defendants deprived [the government] of potentially valuable economic information...that would have resulted from a truly fair and competitive [contracting] process." United States v. Percoco, 13 F.4th 158, 171 (2d Cir. 2021)).

The Supreme Court granted certiorari and held that the Second Circuit's right-to-control theory "cannot be squared with the text of the federal fraud statutes." Ciminelli, 598 U.S. at 314. That holding, it said, follows from the Supreme Court's holding in McNally v. United States that the wire and mail fraud statutes are "limited in scope to the protection of property rights." 483 U.S. 350, 360 (1987).

The court noted that "when the Second Circuit first recognized the right-to-control theory in 1991[,] it could cite no authority that established 'potentially valuable economic information' as a traditionally recognized property interest" and the Second Circuit had not "since attempted to ground the right-to-control theory in traditional property notions." Ciminelli, 598 U.S. at 314. As a result, the Supreme Court found that the theory was impermissible.

'United States v. Lopez'

Ciminelli and Percoco seemed to herald a new era for wire fraud prosecutions, one in which courts pushed back on the broad swatch of conduct that could form the basis for wire fraud charges. Defendants charged under more traditional wire fraud theories brought challenges based on the Supreme Court's reasoning in those cases, arguing that prosecutors' use of the wire fraud statute had gotten out of control.

That argument initially prevailed before the district court in Lopez. In that case, the government indicted a sports marketing company and one of its executives for honest services wire fraud, alleging that they paid bribes to FIFA officials to obtain lucrative broadcasting rights. United States v. Full Play Grp., S.A., 690 F. Supp. 3d 5 (E.D.N.Y. 2023).

After unsuccessfully moving to dismiss the indictment by arguing the statute did not apply to foreign commercial bribery schemes (i.e., bribery of foreign employees of foreign non-government employers), the defendants were convicted at trial.

The district court vacated their convictions, however, finding that Ciminelli and Percoco "signal[led] limits on the scope of the honest services wire fraud statute," and finding that honest services wire fraud did not extend to foreign commercial bribery. Full Play, 690 F. Supp. 3d 5, at 8.

In July, the Second Circuit reversed, finding that neither Percoco nor Ciminelli foreclosed application of the honest services wire fraud statute, 18 U.S.C. §1346, to the bribes in question in Lopez. United States v. Lopez, 143 F.4th 99 (2d Cir. 2025).

The question in Percoco was "whether a private citizen who had influence over government decision-making, but who did not hold public office, could be convicted of honest services wire fraud," and the Supreme Court had "declined to hold that a person outside public employment could never have a fiduciary duty to the public." Id. at 109. The Second Circuit found this holding irrelevant, as it "did not address commercial actors or employment relationships like those at issue" in Lopez. Id. at 110.

The court similarly rejected the district court's reliance on Ciminelli, noting that the decision in that case addressed the traditional wire fraud statute, and not the honest services fraud statute.

Instead, the Second Circuit made clear that the conduct at issue fell squarely within the bounds of the honest services fraud statute. The court concluded that "the nature of Defendants' conduct (bribery), coupled with the character of the relationship between the bribed officials and the organizations to whom they owed a duty of loyalty (employer-employee relationships), place the schemes presumptively within the scope of §1346." 143 F.4th at 113.

It also rejected the argument that the fact that the bribed officials and their employers were all foreign companies did not "remove the schemes from the ambit of §1346, especially where, as here, relevant conduct occurred in the United States, for the benefit of United States- based executives and organizations...and the victims were multinational organizations with global operations and significant ties to the United States."

Notably, the Second Circuit observed that "[i]ntellectually curious jurists, and certainly law professors, can debate whether Percoco and Ciminelli 'signal[ed] limits on the scope of the honest services wire fraud statute.'" Lopez, 143 F.4th at 110 (quoting Full Play, 690 F. Supp. 3d 5, at 8).

The Second Circuit rejected any invitation to speculate on future Supreme Court rulings, however, finding that it "must focus on the concrete holdings of the cases that currently bind us rather than on 'signals' that may forecast future decisions" and that "those concrete holdings lead us to conclude that Defendants' conduct falls within the scope of" the statute. Id.

The Lopez defendants filed a petition for certiorari in late September, arguing that the Second Circuit's decision "might be the most egregious example of the lengths to which prosecutors will go to evade" the Supreme Court's "repeated[] reject[ion] the government's extravagant readings of federal criminal statutes." (See Petition for Writ of Certiorari, No. 25-390 (Sept. 30, 2025) at 2; see also No. 25-396.)

But on Dec. 9, the United States Attorney for the Eastern District of New York moved to dismiss the indictment, explaining that the "government has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice." United States v. Lopez, No. 15 Cr. 00252 (PKC) (E.D.N.Y.) (Dkt. No. 2070).

The same day, in the United States' merits brief before the Supreme Court, the Solicitor General asked the Supreme court to "grant the petitions for writs of certiorari, vacate the judgment of the court of appeals, and remand the case to the district court for further consideration in light of the government's pending motion to dismiss the indictment." (See Brief for the United States, No. 25-390 (Dec. 9, 2025) at 4.)

Conclusion

The government's December filings before the Supreme Court and the district court are silent as to the reasoning behind its determination that "in its prosecutorial discretion" it has concluded that dismissal of the case is "in the interests of justice." Certainly any number of factors, legal and practical, could have driven that decision.

The dramatic change in course, however, following on a clear and decisive victory in front of the Circuit, is notable in the message it sends about the current Administration's priorities and the view prosecutors may take going forward of more aggressive uses of the honest services fraud statute, and of efforts to push back on the what seemed to be a trend to reign in wire fraud prosecutions that was set off by Ciminelli and Percoco.

Practitioners advocating for clients facing wire fraud charges must navigate a legal landscape that has been tumultuous and shifting for some time and that now, post-Lopez, seems even more likely to be defined by the unpredictable nuances of prosecutorial discretion.

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