13‐4702 United States v. Roy UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2014

(Argued: April 2, 2015 Decided: April 20, 2015)

Docket No. 13‐4702

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UNITED STATES OF AMERICA,

Appellee,

—v.—

EMMANUEL ROY,

Defendant‐Appellant,

DANNY SIONY, AKA RAHIM SIUNY KALIMI, SHIRIN KALIMI, AKA SHIRIN SIOUNY, TARIFF DILL, CONSTANTINE GIANNAKOS,

Defendants. _______________

B e f o r e: KATZMANN, Chief Judge, POOLER and CARNEY, Circuit Judges.

_______________ Appeal from a judgment of conviction following a jury trial on one count of conspiracy to commit wire fraud in violation of

, three counts of wire fraud in violation of

, and one count of conspiracy to commit wire fraud and bank fraud in violation of

(Griesa, J.). We hold that the district court did not err in instructing the jury on the two conspiracy counts because proof of an overt act is not required for a conspiracy conviction under

. _______________

B. ALAN SEIDLER, New York, NY, for Defendant‐Appellant.

ROBERT L. BOONE, Assistant United States Attorney (Brian A. Jacobs, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

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PER CURIAM:

Defendant Emmanuel Roy appeals from a judgment of conviction, entered

on December 10, 2013, by the U.S. District Court for the Southern District of New

York (Griesa, J.), following a jury trial in which Roy was convicted of one count

of conspiracy to commit wire fraud in violation of

, three counts

of wire fraud in violation of

, and one count of conspiracy to

commit wire fraud and bank fraud in violation of

. On appeal,

Roy argues that the district court erred by failing to instruct the jury that proof of

an overt act is required for a conviction under the two § 1349 conspiracy

2 charges.1 The question of whether a conspiracy conviction under § 1349 requires

proof of an overt act is one of first impression in this Circuit. We hold that proof

of an overt act is not required for a conspiracy conviction under

and that the district court therefore did not err in its instructions on those

charges.

BACKGROUND

Roy was charged in a five‐count superseding indictment that was filed on

November 13, 2012. Count One charged Roy with conspiracy to commit wire

fraud in violation of

. Counts Two, Three, and Four charged Roy

with wire fraud in violation of

. Count Five charged Roy with

conspiracy to commit wire fraud and bank fraud in violation of

.

At the end of trial, the district court instructed the jury on the elements of

each charged crime. Of particular relevance here, the district court did not

1 Roy also argues that the district court erred by: (1) dismissing a juror who knew a defense witness; (2) providing a jury instruction on the reasonable doubt standard that failed to compare that standard to other lower standards of proof and that included an allegedly improper “hesitate to act” formulation of reasonable doubt; (3) failing to instruct the jury on the “factual underpinnings” of Roy’s charged crimes; (4) failing to provide the jurors with a copy of the Indictment; and (5) excluding certain expert testimony. We address those issues in a separate order, in which we affirm the district court’s judgment for the reasons stated both in that order and in this opinion.

3 instruct the jury that it must find that Roy committed an overt act in furtherance

of the conspiracies charged in Counts One and Five of the Indictment.

After a seven‐day jury trial, Roy was convicted on February 1, 2013 of all

five counts. On December 5, 2013, the district court sentenced Roy to an

aggregate term of 87 months’ imprisonment, three years of supervised release,

and a $500 mandatory special assessment. This timely appeal followed.

DISCUSSION

On appeal, Roy argues that the district court erred by not instructing the

jury that, for it to convict on Count One or Count Five, it must find that Roy

committed an overt act in furtherance of the charged conspiracy.

We review de novo a district court’s jury instruction. See United States v.

Naiman,

(2d Cir. 2000). “A jury instruction is erroneous if it

misleads the jury as to the correct legal standard or does not adequately inform

the jury on the law.”

(internal quotation marks omitted). A defendant

challenging a jury instruction must demonstrate that he requested a charge that

“accurately represented the law in every respect” and that the charge delivered

was erroneous and prejudicial. United States v. Applins,

(2d Cir.

2011) (internal quotation marks omitted).

4 The two conspiracy counts in Roy’s Indictment charged violations of

, which provides:

Any person who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

. The provision does not expressly note that an overt act is

required for a conspiracy conviction.

In 2005, the Supreme Court considered whether an overt act was required

to convict a defendant of conspiracy to commit money laundering, in violation of

(h). See Whitfield v. United States,

(2005). That

statutory provision reads:

Any person who conspires to commit any offense defined in this section or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

(h). The Supreme Court found that § 1956(h) does not require

proof of an overt act, reasoning that where the text of a statute “does not

expressly make the commission of an overt act an element of the conspiracy

offense, the Government need not prove an overt act to obtain a conviction.”

Whitfield,

.

5 Section 1349 does not expressly require commission of an overt act. As a

result, many other Circuits, as well as several district courts in this Circuit, have

concluded that a conviction under the statute does not require proof of an overt

act. See, e.g., United States v. Rogers,

, 380–82 (6th Cir. 2014); United

States v. Eason,

, 810 n.3 (11th Cir. 2014) (per curiam); United

States v. Pascacio‐Rodriguez,

, 363–64 & 364 n.49 (5th Cir. 2014); United

States v. Chinasa,

, 685–86 (4th Cir. 2012) (unpublished per

curiam); United States v. Fishman,

(10th Cir. 2011); United

States v. Kazarian, No. 10 Cr. 895,

, at *24 n.12 (S.D.N.Y. May 18,

2012); United States v. Albers, No. 08‐CR‐819,

, at *1 (E.D.N.Y.

Mar. 31, 2011). We agree with these courts and conclude that a conspiracy

conviction under § 1349 does not require proof of an overt act.

Despite the strong authority supporting the government’s position, Roy

argues that in a recent nonprecedential decision, we decided that a conviction for

conspiracy under § 1349 requires proof of an overt act. See United States v.

Yakovlev,

(2d Cir. 2013) (summary order). The Yakovlev panel

explained that: “‘[t]o prove conspiracy [under § 1349], the government must

show that the defendant agreed with another to commit the offense; that he

6 knowingly engaged in the conspiracy with the specific intent to commit the

offenses that were the objects of the conspiracy; and that an overt act in

furtherance of the conspiracy was committed.’” Id. at 36–37 (quoting United

States v. Huezo,

(2d Cir. 2008)).

But there are two reasons that Yakovlev’s description of the § 1349 elements

should not control our decision. First, and most importantly, the discussion of

the overt act requirement was clearly dicta. It was completely unrelated to the

issue before the panel, which involved whether the defendant agreed with a co‐

conspirator to commit bank fraud. See id. Second, the Yakovlev decision simply

quoted from Huezo, which in turn considered the overt act requirement in the

context of a different statute,

(h). The problem is that Huezo’s

discussion of the elements of a violation of § 1956(h) was also incorrect because

the Supreme Court had specifically decided, three years earlier, in Whitfield, that

a conspiracy conviction under § 1956(h) does not require proof of an overt act.

See Whitfield,

. As such, we do not give weight to Yakovlev’s

recitation of the elements of conspiracy under § 1349.

7 CONCLUSION

For the reasons stated herein, we hold that the district court did not err in

instructing the jury on the two conspiracy counts because proof of an overt act is

not a required element for a conspiracy conviction under

.

8