Page:Ciminelli v. United States.pdf/14

Rh

, concurring.

The opinion of the Court correctly answers the sole question posed to us: whether the right-to-control theory supports liability under the federal wire fraud statute. The jury instructions embody that theory, and therefore this error, unless harmless, requires the reversal of the judgment below. I do not understand the Court’s opinion to address fact-specific issues on remedy outside the question presented, including: (1) petitioner’s ability to challenge the indictment at this stage of proceedings, see Fed. Rule Crim. Proc. 12(b)(3)(B); (2) the indictment’s sufficiency, see United States v. Miller, 471 U. S. 130, 134–135 (1985) (variance from indictment did not make indictment insufficient); (3) the applicability of harmless error to particular invocations of the right-to-control theory during trial, see Neder v. United States, 527 U. S. 1, 15 (1999) (omission of element in jury instructions subject to harmless error); and (4) the Government’s ability to retry petitioner on the theory that he conspired to obtain, and did in fact obtain, by fraud, a traditional form of property, viz., valuable contracts. On this understanding, I join the Court’s opinion.