22-1749-cr United States v. Andrew

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of September, two thousand twenty-four .

PRESENT:

GERARD E. LYNCH, BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

United States of America,

Appellee,

v. 22-1749

Seth Andrew, AKA Sealed Defendant 1,

Defendant-Appellant.

_____________________________________ FOR APPELLEE: RYAN B. FINKEL, (Nathan Rehn, on the brief) Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

FOR DEFENDANT-APPELLANT: SETH ANDREW, pro se, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (John P. Cronan, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Appellant Seth Andrew waived his right to indictment and pleaded guilty

to one count of wire fraud in violation of

. The information

alleged that Andrew devised a scheme “for obtaining money and property by

means of false and fraudulent pretenses” and “stole approximately $218,005

belonging to charter schools.” United States v. Andrew, No. 1:22-cr-00032

(S.D.N.Y. Jan. 14, 2022), doc. 26 at 1. At his plea hearing, Andrew admitted transferring funds from various accounts into a different account that he had

opened, representing to the banks that he was authorized to transfer those funds

when, in reality, he was not. The district court sentenced Andrew and entered

final judgment in July 2022. Andrew timely appealed. He represents himself on

appeal.

Andrew argues that his wire fraud conviction was based on a right-to-

control theory of wire fraud that has since been rejected by the Supreme Court in

Ciminelli v. United States,

(2023), and that his conduct thus does not

fall within the statute of conviction. We assume the parties’ familiarity with the

underlying facts, the procedural history (including the prior motions practice in

this Court), and the issues on appeal. 1

We review Andrew’s argument that he was convicted under the now-

invalid right-to-control theory for plain error because he did not raise the

argument in district court. 2 See United States v. Le,

(2d Cir. 2018).

To demonstrate plain error, Andrew “must show (1) error that (2) is clear or

obvious under current law; (3) affects his substantial rights, which generally

1 A motions panel of this Court dismissed Andrew’s Brady challenges as precluded by a valid appeal waiver. See United States v. Andrew, No. 22-1749 (2d Cir. Oct. 31, 2023), doc. 119. 2 For purposes of our review, we assume without deciding that Andrew’s guilty plea does not

bar his challenge. means affects the outcome of the district court proceedings; and (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

3

Andrew cannot demonstrate plain error. To convict a defendant of wire

fraud, the government must prove beyond a reasonable doubt “(1) a scheme to

defraud, (2) money or property as the object of the scheme, and (3) use of the . . .

wires to further the scheme.” Fountain v. United States,

(2d Cir.

2004); see also

.

Before the Supreme Court’s decision in Ciminelli, this Court held that

“property” could include “‘intangible’ interests such as the right to control the use

of one’s assets,” United States v. Calderon,

(2d Cir. 2019), or

“potentially valuable economic information” that is “necessary to make

discretionary economic decisions,” United States v. Percoco,

(2d

Cir. 2021).

In Ciminelli, the Supreme Court rejected this theory of fraud, and held that

“the federal fraud statutes criminalize only schemes to deprive people of

traditional property interests.”

. Because the Government in

Ciminelli purported to “establish wire fraud by showing that the defendant

3 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted. schemed to deprive a victim of potentially valuable economic information

necessary to make discretionary economic decisions,” and the district court had

instructed the jury that “property” included these intangible interests, the

conviction could not stand.

at 310–11, 317.

Ciminelli has no bearing here. Contrary to Andrew’s argument, the record

reflects that his conviction for wire fraud was not predicated on the right-to-

control theory. Andrew was convicted because he stole money belonging to

charter schools. The charging information and his own admissions in pleading

guilty establish that. Because Andrew was charged with and pleaded guilty to

depriving the victims of their money—a traditional property interest—Ciminelli is

inapplicable to his conviction. See United States v. Kousisis,

, 240 n.63

(3d Cir. 2023) (concluding that Ciminelli does not bar prosecution where money is

target of fraudulent scheme), cert. granted,

(2024). Andrew cannot

now reframe the case on appeal based on a narrative that is at odds with his own

admissions and guilty plea.

Andrew’s remaining arguments require little analysis. Some piggyback on

his theory that he was prosecuted under a right-to-control theory of fraud.

Because the district court relied on the economic harm he caused, we see no error in the court’s reference at sentencing to the potential non-economic harm. And

we reject his suggestion that he cannot be convicted of wire fraud because he did

not “wire” any funds. The wire fraud statute is not so limited. See

(including as element of offense transmission by wire of “writings, signs,

signals, pictures, or sounds” for purpose of scheme or artifice to defraud). And to

the extent that he raises new arguments in his reply brief or at oral argument, we

decline to consider them. See Green v. Department of Education of City of New York,

(2d Cir. 2021) (Though we liberally construe submissions by

self-represented litigants, they are bound by the rule that issues not raised in

opening appeal brief are deemed abandoned.). If Andrew purports to make any

other arguments we have not addressed, they are inadequately briefed.

After oral argument, Andrew filed two motions: 1) a motion asking us to

hold our decision in abeyance pending the Supreme Court’s decision in Kousisis v.

United States,

(2024), and its review of a petition for certiorari in Porat

v. United States, No. 23-832, cert. petition pending, and 2) a motion seeking

permission to file supplemental briefing addressing factual assertions the

government made in its appellate oral argument. The motion to hold in abeyance

is predicated on the same theory—that Andrew was convicted based on a right- to-control theory rather than for appropriating money without authorization—

that we reject. We deny the post-argument motion to hold in abeyance for the

same reason. We deny the post-argument motion to file supplemental briefing

regarding various factual questions because they are immaterial to our decision.

The question Andrew presents in this direct appeal is whether his conviction is

valid in light of the Supreme Court’s decision Ciminelli. Because Andrew was not

convicted on a right-to-control theory, we conclude his conviction is unaffected by

Ciminelli.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court