Page:Ciminelli v. United States.pdf/12

Rh In sum, the wire fraud statute reaches only traditional property interests. The right to valuable economic information needed to make discretionary economic decisions is not a traditional property interest. Accordingly, the right-to-control theory cannot form the basis for a conviction under the federal fraud statutes.

Despite indicting, obtaining convictions, and prevailing on appeal based solely on the right-to-control theory, the Government now concedes that the theory as articulated below is erroneous. Brief for United States 24–26. The Government frankly admits that, “to the extent that language in the [Second Circuit’s] opinions might suggest that depriving a victim of economically valuable information, without more, necessarily qualifies as ‘obtaining money or property’ within the meaning of the fraud statutes, that is incorrect.” Id., at 24. That should be the end of the case.

Yet, the Government insists that its concession does not require reversal because we can affirm Ciminelli’s convictions on the alternative ground that the evidence was sufficient to establish wire fraud under a traditional property-fraud theory. Id., at 31–32. With profuse citations to the records below, the Government asks us to cherry-pick facts presented to a jury charged on the right-to-control theory and apply them to the elements of a different wire fraud theory in the first instance. In other words, the Government asks us to assume not only the function of a court of first view, but also of a jury. That is not our role. See, e.g., McCormick v. United States, 500 U. S. 257, 270–271, n. 8 (1991) (“Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury”); Chiarella v. United States, 445 U. S. 222, 236 (1980). Accordingly, we decline the Government’s request to affirm Ciminelli’s convictions on alternative grounds.