`USA v. Blaszczak
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`UNITED STATES COURT OF APPEALS
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`FOR THE SECOND CIRCUIT
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`- - - - - -
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`August Term, 2020
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`(Argued: June 9, 2021
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` Decided: December 27, 2022)
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`Docket Nos. 18-2811, 18-2825, 18-2867, 18-2878
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`_________________________________________________________
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`UNITED STATES OF AMERICA,
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`Appellee,
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`- v. -
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`DAVID BLASZCZAK, THEODORE HUBER, ROBERT OLAN,
`CHRISTOPHER WORRALL,
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`Defendants-Appellants.
`_________________________________________________________
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`Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges.
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`Appeals, following vacatur and remand by the United States Supreme Court
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`for further consideration, in light of Kelly v. United States, 140 S. Ct. 1565 (2020), of this
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`Court's prior affirmance of judgments of the United States District Court for the Southern
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`District of New York convicting some or all of the defendants on substantive counts of
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`conversion of government property in violation of 18 U.S.C. § 641, wire fraud in violation
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`of 18 U.S.C. § 1343, and securities fraud in violation of 18 U.S.C. § 1348; and convicting
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`certain of the defendants on various counts of conspiring to engage in conduct violating one
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`or more of the above sections, all originating from misappropriation of confidential
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`information from the Centers for Medicare & Medicaid Services ("CMS"), see United States
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`v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated and remanded, 141 S. Ct. 1040, 2021 WL 78042,
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`2021 WL 78043 (Jan. 11, 2020). On this remand: (A) defendants contend that their argument
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`that the CMS information at issue does not constitute "property" or a "thing of value" within
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`the meaning of the above statutes is supported by the Supreme Court's decision in Kelly;
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`(B) the government, concurring in that contention, confesses error as to the substantive
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`counts and as to a count charging only conspiracy to violate §§ 1343 and 1348 (Count Two);
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`and it agrees that either the defendants' convictions on those counts should be reversed, or
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`the cases should be remanded to the district court so that the government can dismiss those
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`counts pursuant to Fed. R. Crim. P. 48(a); and (C) the government seeks affirmance on the
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`remaining conspiracy counts (Counts One and Seventeen).
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`Given the Supreme Court's decision in Kelly and the prosecutorial discretion
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`to which the Executive Branch of the government is entitled, we grant the government's
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`request to remand the cases to the district court for dismissal of the substantive counts and
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`Count Two. As to Counts One and Seventeen, the verdicts do not reveal whether the jury
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`found that the charged defendants conspired to commit offenses as to which the government
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`has confessed error or instead found that they conspired to engage in other charged criminal
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`conduct. Accordingly, we vacate the convictions on these two counts and remand for such
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`further proceedings as may be appropriate.
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`Remanded for dismissal of the substantive counts and Count Two; vacated and
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`remanded for further proceedings on Counts One and Seventeen.
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`Judge Walker joins the majority opinion and concurs in a separate concurring
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`opinion, in which Judge Kearse joins.
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`Judge Sullivan dissents, in a separate opinion.
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`ERIC J. FEIGIN, Deputy Solicitor General, United States
`Department of Justice, Washington, D.C. (Elizabeth B.
`Prelogar, Acting Solicitor General, United States
`Department of Justice, Washington, D.C.; Audrey
`Strauss, United States Attorney for the Southern District
`of New York, Ian McGinley, Joshua A. Naftalis, Won S.
`Shin, Assistant United States Attorneys, New York, New
`York, on the brief), for Appellee.
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`DONALD B. VERRILLI, JR., Washington, D.C. (Elaine J.
`Goldenberg, Jonathan S. Meltzer, Dahlia Mignouna,
`Jacobus P. van der Ven, Munger, Tolles & Olson,
`Washington, D.C., David Esseks, Eugene Ingoglia,
`Alexander Bussey, Allen & Overy, New York, New York,
`on the brief for Defendant-Appellant Robert Olan; Daniel M.
`Sullivan, James M. McGuire, Holwell Shuster &
`Goldberg, New York, New York, Stephen Fishbein, John
`A. Nathanson, Shearman & Sterling, New York, New
`York, on the brief for Defendant-Appellant Christopher
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`Worrall; Alexandra A.E. Shapiro, Daniel J. O'Neill, Eric S.
`Olney, Shapiro Arato Bach, New York, New York, Barry
`H. Berke, Dani R. James, Kramer Levin Naftalis &
`Frankel, New York, New York, on the brief for Defendant-
`Appellant Theodore Huber; Colleen P. Cassidy, Barry D.
`Leiwant, Federal Defenders of New York, New York,
`New York, on the brief for Defendant-Appellant David
`Blaszczak), for Defendants-Appellants.
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`KATHERINE R. GOLDSTEIN, New York, New York (Akin
`Gump Strauss Hauer & Feld, New York, New York, on
`the brief), Court-appointed Amicus Curiae, in support of
`reinstatement of this Court's decision of affirmance.
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`Peter Neiman, New York, New York (Nicholas Werle, Wilmer
`Cutler Pickering Hale and Dorr, New York, New York,
`Jessica Lutkenhaus, Wilmer Cutler Pickering Hale and
`Dorr, Washington, D.C.; Lindsay A. Lewis, Committee of
`the National Association of Criminal Defense Lawyers,
`New York, New York, of counsel), submitted a brief for
`Amicus Curiae National Association of Criminal Defense
`Lawyers in support of reversal.
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`Roman Martinez, Washington, D.C. (Michael Clemente, Latham
`& Watkins, Washington, D.C., Jason M. Ohta, Latham &
`Watkins, San Diego, California; Stephen R. Cook, Brown
`Rudnick, Irvine, California, Justin S. Weddle, Weddle
`Law, New York, New York, of counsel), submitted a brief
`for Amicus Curiae Jeffrey Wada in support of Defendants-
`Appellants and reversal.
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`Michael H. McGinley, Philadelphia, Pennsylvania (Michael P.
`Corcoran, Dechert, Philadelphia, Pennsylvania, of
`counsel), submitted a brief for Amicus Curiae The Alternative
`Investment Management Association in support of reversal.
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`KEARSE, Circuit Judge:
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`This appeal returns to us on remand from the United States Supreme
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`Court for further consideration, in light of Kelly v. United States, 140 S. Ct. 1565 (2020),
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`of this Court's prior affirmance of judgments of the United States District Court for
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`the Southern District of New York convicting defendants David Blaszczak, Theodore
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`Huber, Robert Olan, and Christopher Worrall of conversion of government property
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`in violation of 18 U.S.C. § 641 and wire fraud in violation of 18 U.S.C. § 1343; and
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`convicting Blaszczak, Huber, and Olan of securities fraud in violation of 18 U.S.C.
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`§ 1348 ("Title 18 securities fraud"), conspiracy to commit wire fraud and Title 18
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`securities fraud in violation of 18 U.S.C. § 1349, and conspiracies in violation of
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`18 U.S.C. § 371 to, inter alia, convert government property and defraud the United
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`States, all originating from misappropriation of confidential information from the
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`Centers for Medicare & Medicaid Services ("CMS"), see United States v. Blaszczak, 947
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`F.3d 19 (2d Cir. 2019) ("Blaszczak I"), vacated and remanded, 141 S. Ct. 1040, 2021 WL
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`78043 (Jan. 11, 2021). On this remand: (A) defendants contend that their argument
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`that the CMS information at issue does not constitute "property" or a "thing of value"
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`within the meaning of the above statutes is supported by the Supreme Court's decision
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`in Kelly; (B) the government, concurring in that contention, confesses error as to those
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`substantive counts and as to a conspiracy count premised only on crimes concerning
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`"property" (Count Two); and it agrees that either the defendants' convictions on those
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`counts should be reversed, or the cases should be remanded to the district court so
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`that the government can dismiss those counts pursuant to Fed. R. Crim. P. 48(a); and
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`(C) the government seeks affirmance on the remaining conspiracy counts on which one
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`or more defendants were convicted (Counts One and Seventeen).
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`For the reasons that follow, given the Supreme Court's decision in Kelly
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`and the prosecutorial discretion to which the Executive Branch of the government is
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`entitled, we grant the government's request to remand the cases to the district court
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`for dismissal of the substantive counts and the conspiracy charged in Count Two. As
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`to Counts One and Seventeen, the verdicts do not reveal whether the jury found that
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`the charged defendants conspired to engage in alleged conduct other than that which
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`the government no longer contends was criminal. Accordingly, we vacate the
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`convictions on these two counts and remand for such further proceedings as may be
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`appropriate.
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`I. BACKGROUND
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`The history of this prosecution, summarized briefly here, is set out in
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`Blaszczak I, 947 F.3d 19, familiarity with which is assumed.
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`CMS is an agency within the United States Department of Health and
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`Human Services. CMS administers Medicare and Medicaid, including inter alia, issuing
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`rules setting reimbursement rates for healthcare providers. The rules may impact the
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`stock prices of companies that offer products and services covered by the rates.
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`Worrall was an employee at CMS; Blaszczak, a consultant for hedge
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`funds, was a former CMS employee. Huber and Olan were partners in a hedge fund
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`("Deerfield"). At various times between 2009 and 2014, Worrall gave Blaszczak
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`nonpublic information about the timing and substance of proposed CMS rule changes
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`that would change reimbursement rates for certain types of medical care for various
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`health conditions. Blaszczak gave that information to Huber, Olan, or another
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`Deerfield partner, following which Deerfield engaged in profitable short sales of shares
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`of companies that would be negatively affected by reimbursement rate reductions
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`when they became effective. Between 2010 and 2013, Blaszczak also gave such
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`information to another hedge fund client, following which that fund profitably
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`maintained its short positions and purchased put-options in shares of such companies.
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`A. The Prosecution and the Convictions
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`With respect to the above activities, defendants were indicted and tried
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`on substantive charges of Title 18 securities fraud in violation of § 1348, securities
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`fraud in violation of 15 U.S.C. § 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5 (collectively
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`"Title 15 securities fraud"), wire fraud in violation of 18 U.S.C. § 1343, and conversion
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`of United States property (i.e., the CMS information) in violation of 18 U.S.C. § 641.
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`All four defendants were charged with conspiracy, in violation of 18 U.S.C. § 371, to
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`commit Title 15 securities fraud, to convert government property, and to defraud the
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`United States (Count One), and conspiracy in violation of 18 U.S.C. § 1349 to commit
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`wire fraud and Title 18 securities fraud (Count Two). Blaszczak was charged in Count
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`Seventeen with conspiracy in violation of § 371 to convert government property and
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`to defraud the United States.
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`The jury acquitted all of the defendants on all substantive counts of Title
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`15 securities fraud. On the other substantive charges, all four defendants were
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`convicted on at least one count of § 641 property conversion and at least one count
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`of § 1343 wire fraud: Blaszczak was convicted on a total of three counts of § 641
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`property conversion, two counts of § 1343 wire fraud, and two counts of Title 18
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`securities fraud. Huber and Olan were each convicted on one count of § 641 property
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`conversion, one count of § 1343 wire fraud, and one count of Title 18 securities fraud.
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`Worrall was convicted only on one count of § 641 property conversion and one count
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`of § 1343 wire fraud. As to the conspiracy counts, Blaszczak, Huber, and Olan were
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`convicted on Counts One and Two; Blaszczak was convicted on Count Seventeen.
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`On appeal, defendants challenged their convictions on the principal
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`ground that §§ 1343 and 1348 apply to fraudulent schemes to obtain "money or
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`property" and that § 641 applies to conversion of "money[] or [a] thing of value" of
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`the government, and that CMS's confidential information as to its plans for announcing
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`changes in medical service reimbursement rates was not government "property" or a
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`"thing of value" within the meaning of those statutes. The majority in Blaszczak I
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`disagreed, and the convictions were affirmed.
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`B. The Supreme Court's Decision in Kelly
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`Following denial of defendants' petitions for rehearing in this Court and
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`a stay of their time to seek further review, defendants petitioned the Supreme Court
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`for certiorari. In the meantime, the Supreme Court had decided Kelly.
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`Kelly
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`involved politically motivated conduct by officials
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`in
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`the
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`administration of New Jersey's then-Governor Chris Christie to cause significant traffic
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`gridlock for several days in Fort Lee, New Jersey--terminus of the George Washington
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`Bridge to Manhattan--by reducing the Bridge's toll plaza lanes accessed from Fort Lee
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`from three lanes to one, in retribution for the refusal of Fort Lee's mayor to endorse
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`Christie's bid for reelection. The plan was executed under the guise of a traffic study;
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`its exposure as a sham led to the officials' criminal prosecution.
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`The officials were charged with wire fraud in violation of 18 U.S.C.
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`§ 1343 (which prohibits schemes "for obtaining money or property"), fraud on a
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`federally funded entity (i.e., the Port Authority, which administered the Bridge) in
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`violation of 18 U.S.C. § 666(a)(1)(A) (which prohibits fraudulently "obtain[ing] . . .
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`property" from such an entity), and conspiracy to commit those crimes. After the
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`defendants were convicted and their convictions were affirmed on appeal, the Supreme
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`Court reversed.
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`The Court held that the defendants' conduct did not fall within the scope
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`of § 1343 or § 666(a)(1)(A) because their scheme did not aim to deprive the Port
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`Authority of money or property. The Court noted that the federal fraud statutes are
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`"limited in scope to the protection of property rights," Kelly, 140 S. Ct. at 1571 (internal
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`quotation marks omitted), and do not "criminaliz[e] all acts of dishonesty," id. Thus,
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`the government was required to prove, inter alia, that the object of the defendants'
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`fraud was money or property, see id. at 1571-72. Instead, the Court concluded, the
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`Kelly defendants, by deciding the distribution of lanes for drivers on the toll road, had
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`exercised the government's regulatory rights of "'allocation, exclusion, and control.'"
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`Id. at 1573 (quoting Cleveland v. United States, 531 U.S. 12, 23 (2000)). The Court stated
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`that such regulatory rights "do 'not create a property interest,'" Kelly, 140 S. Ct. at 1573
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`(quoting Cleveland, 531 U.S. at 23), and thus, "a scheme to alter such a regulatory
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`choice is not one to appropriate the government's property," Kelly, 140 S. Ct. at 1572.
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`The Court rejected the government's arguments that the property aspect
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`of § 1343 and § 666(a)(1)(A) was satisfied either because the physical lanes that the
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`defendants "'commandeer[ed]'" were government property, id., or because their project
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`required expenditures of time and labor by Port Authority employees. The Court held
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`that for conduct to be within those statutes, property must be more than an incidental
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`aspect of the fraud; it "must be an 'object of the fraud.'" Id. at 1573 (quoting
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`Pasquantino v. United States, 544 U.S. 349, 355 (2005)). As the object of the defendants'
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`scheme was clearly to alter "a regulatory decision about the toll plaza's use" for
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`political retaliation, rather than to take the lanes from the government or to convert
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`them to non-public use, the lanes as property played no more than a "bit part in [the]
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`scheme." Kelly, 140 S. Ct. at 1573. Similarly, in contrast to a misuse of public
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`employees to renovate an official's home, the defendants merely altered a regulation;
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`"[e]very regulatory decision" involves some employee labor, and that expended by the
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`Port Authority employees was "only an incidental byproduct of the scheme." Id.
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`at 1573-74.
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`C. The Parties' Positions on Remand in Light of Kelly
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`In the present case, defendants successfully petitioned for certiorari, with
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`some support from the government: "At the request of the Acting Solicitor General,
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`the Supreme Court granted the petitions" of defendants for certiorari, "vacated this
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`Court's judgment, and remanded the case for further consideration in light of Kelly."
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`(Government brief on remand at 2.)
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`Defendants on this remand renew their principal contention that the CMS
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`information at issue does not constitute "property" or a "thing of value" within the
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`meaning of the fraud and conversion statutes, and they contend that that conclusion
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`is supported by the Supreme Court's decision in Kelly. Their opening brief on remand
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`urges that all of their convictions be reversed.
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`The government on remand, insofar as the substantive counts of
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`conviction are concerned, agrees with defendants that those counts cannot stand. It
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`states that,
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`[i]n light of the Supreme Court's holding in Kelly, it is now
`the position of the Department of Justice that in a case involving
`confidential government information, that information typically
`must have economic value
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`the hands of
`the relevant
`government entity
`to constitute "property"
`for purposes of
`18 U.S.C. §§ 1343 and 1348. . . . A related, though not necessarily
`identical, analysis applies when determining what confidential
`information is a "thing of value" under 18 U.S.C. § 641. The
`Department has determined that the confidential information at
`issue in this case does not constitute "property" or a "thing of
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`value" under the relevant statutes after Kelly. To be sure, this
`Court recognized that "CMS does have an economic interest in its
`confidential predecisional information" because the agency "invests
`time and resources
`into generating and maintaining
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`confidentiality of" that information, and leaks affect the "efficient
`use of its limited time and resources." Blaszczak[ I ], 947 F.3d
`at 33. But in the Department's view, shaped by Kelly, the CMS
`employee time at issue in this case did not constitute "an object of
`the fraud," and thus the associated "labor costs could not sustain
`the conviction[s]" here. Kelly, 140 S. Ct. at 1573.
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`(Government brief on remand at 7-8 (emphasis in brief).)
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` "Accordingly," the
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`government states, "this Office is constrained to confess error at the direction of the
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`Solicitor General's Office" (id. at 8; see also id. at 2 ("This brief was prepared in
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`consultation with the Office of the Solicitor General to reflect the Department of
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`Justice's post-Kelly position on the scope of 'property' under 18 U.S.C. §§ 1343 and
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`1348, and a 'thing of value' under 18 U.S.C. § 641, which this Office is constrained to
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`follow.")). The government urges that we either "reverse . . . the convictions" for
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`conversion of United States property (Counts Three, Thirteen, and Eighteen), wire
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`fraud (Counts Nine and Fifteen), Title 18 securities fraud (Counts Ten and Sixteen),
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`and conspiracy to commit wire fraud and Title 18 securities fraud (Count Two)
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`(Government brief on remand at 8-9), or that we remand the matter to the district
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`court in order to permit the government to have those eight counts dismissed
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`pursuant to Federal Rule of Criminal Procedure 48(a) (Government response to brief
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`of Court-appointed amicus curiae at 8).
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`The government argues, however, that the conspiracy convictions on
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`Counts One and Seventeen should be affirmed. Count One, on which Blaszczak,
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`Huber, and Olan were convicted, alleged that defendants' objectives were not only to
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`convert government property in violation of § 641, but also to commit Title 15
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`securities fraud and to defraud the United States in violation of 18 U.S.C. § 371. And
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`Count Seventeen, alleged only against Blaszczak, alleged that his objectives were both
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`conversion of government property and defrauding the United States. The government
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`acknowledges that "[i]n light of [its] confession of error, . . . the Government is
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`constrained to concede that the § 641 objects are legally invalid," but it argues that
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`"the § 371 defraud-clause objects were not affected by Kelly and remain legally valid."
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`(Government brief on remand at 10.) The government also concedes that the jury's
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`"general verdict[s]" on Counts One and Seventeen, and "the presence of both legally
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`invalid and legally valid objects gives rise to error" (id. (citing Yates v. United States,
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`354 U.S. 298 (1957))). However, it argues that the error is harmless in light of the
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`"overwhelming evidence" that Blaszczak conspired with Huber and Olan (the Deerfield
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`partners) to defraud the United States in connection with Deerfield's stock trading
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`(Count One), and that Blaszczak conspired with another client to defraud the United
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`States in connection with that client's stock trading (Count Seventeen).
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`In reply, defendants concur in the government's proposal to have the
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`substantive counts and Count Two dismissed. Blaszczak, Huber, and Olan, in reply
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`to the government's contention that their conviction(s) on Counts One and Seventeen
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`should be affirmed, dispute the government's contention that any lack of clarity as to
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`the basis of the jury verdicts on these counts was harmless. They argue that it is
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`instead likely that the jury based its conspiracy verdicts on the § 641 allegations, given
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`that the government ended its rebuttal summation by urging "the jury to 'take the jury
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`form and mark guilty on Count One, because that is a conspiracy to steal government
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`information.'" (Defendants' reply brief on remand at 13 (quoting trial transcript
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`(emphasis in brief)).) They argue that the convictions on Counts One and Seventeen,
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`if not reversed, must at least be vacated.
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`II. DISCUSSION
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`For the reasons that follow, given the Supreme Court's decision in Kelly
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`and the prosecutorial discretion to which the Executive Branch of the government is
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`entitled, we grant the government's request to remand these cases to the district court
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`for dismissal of the seven substantive counts of conviction and the conspiracy
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`conviction in Count Two. In light of the lack of clarity as to whether the jury's
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`verdicts of guilt on Counts One and Seventeen were based on findings of conspiracy
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`to violate § 641 or instead on conspiracy to defraud the government in violation of
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`§ 371 (or in Count One on conspiracy to commit Title 15 securities fraud), we vacate
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`the judgments on Counts One and Seventeen and remand for such further proceedings
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`on these counts as may be appropriate.
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`A. The Government's Confession of Error in Light of Kelly
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`"[O]ne of the core powers of the Executive Branch of the Federal
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`Government [is] the power to prosecute." United States v. Armstrong, 517 U.S. 456, 467
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`(1996). "'[S]ubject to constitutional constraints,'" id. at 464 (quoting United States v.
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`Batchelder, 442 U.S. 114, 125
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`(1979)), such as prohibitions against
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`invidious
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`discrimination, see generally Armstrong, 517 U.S. at 464-65, or vindictive prosecution, see
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`generally United States v. Goodwin, 457 U.S. 368, 373-74 (1982), the United States
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`"Attorney General and United States Attorneys retain 'broad discretion' to enforce the
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`Nation's criminal laws," Armstrong, 517 U.S. at 464 (quoting Wayte v. United States, 470
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`U.S. 598, 607 (1985) (other internal quotation marks omitted)).
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`In the ordinary case, "so long as the prosecutor has probable cause
`to believe that the accused committed an offense defined by
`statute, the decision whether or not to prosecute, and what charge
`to file or bring before a grand jury, generally rests entirely in his
`discretion."
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`Armstrong, 517 U.S. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)
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`(emphasis ours)).
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`This broad discretion rests largely on the recognition that the
`decision to prosecute is particularly ill-suited to judicial review.
`Such factors as the strength of the case, the prosecution's general
`deterrence value, the Government's enforcement priorities, and the
`case's relationship to the Government's overall enforcement plan
`are not readily susceptible to the kind of analysis the courts are
`competent to undertake.
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`Wayte, 470 U.S. at 607; see also United States v. Knox, 32 F.3d 733, 739 n.3 (3d Cir. 1994)
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`("[A] prosecutor always has broad discretion to decide the circumstances that warrant
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`prosecution of a person for what the prosecutor fairly believes is unlawful conduct.
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`When the prosecutor decides to prosecute, . . . it is the exclusive function of the
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`judiciary to determine whether the conduct charged is unlawful unless the prosecutor
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`then withdraws the prosecution." (emphasis added)).
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`The Federal Rules of Criminal Procedure provide, as pertinent here, that
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`"[t]he government may, with leave of court, dismiss an indictment . . . ." Fed. R.
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`Crim. P. 48(a).
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`is
`The principal object of the "leave of court" requirement
`apparently to protect a defendant against prosecutorial harassment,
`e.g., charging, dismissing, and recharging, when the Government
`moves to dismiss an indictment over the defendant's objection. . . .
`But the Rule has also been held to permit the court to deny a
`Government dismissal motion
`to which
`the defendant has
`consented if the motion is prompted by considerations clearly
`contrary to the public interest.
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`Rinaldi v. United States, 434 U.S. 22, 29-30 n.15 (1977) (emphasis added); see generally
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`United States v. Cowan, 524 F.2d 504, 509-11 (5th Cir. 1975) ("Cowan") (the "leave of
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`court" requirement was added by the Supreme Court to the originally proposed
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`version of Rule 48(a), which had required the government merely to give a statement
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`of its reasons for dismissing a prosecution), cert. denied sub nom. Woodruff v. United
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`States, 425 U.S. 971 (1976).
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`The government may elect to eschew or discontinue prosecutions for any
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`of a number of reasons. Rarely will the judiciary overrule the Executive Branch's
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`exercise of these prosecutorial decisions. For example, in Petite v. United States, 361
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`U.S. 529 (1960), the government, while not opposing the defendant's certiorari petition
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`challenging his prosecution and conviction on the ground of double jeopardy, informed
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`the Supreme Court that the Department of Justice ("Department" or "Justice
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`Department"), "wholly apart from the question of the legal validity of the claim of
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`double jeopardy," was considering whether the second prosecution of the defendant
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`was consistent with Department policy for the control of government litigation. Id.
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`at 530. Thereafter, the Solicitor General having announced a general policy against
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`multiple prosecutions arising out of a single transaction or against a federal
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`prosecution that would be duplicative of a state prosecution, see id. at 530-31, the
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`government moved for, and the Supreme Court granted, a "remand[] to the Court of
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`Appeals to vacate its judgment [of affirmance] and to direct the District Court to
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`vacate its judgment [of conviction] and to dismiss the indictment," id. at 531.
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`Even when a defendant has been tried, convicted, and sentenced in a
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`prosecution that, under the Petite policy, would not have been brought if the Justice
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`Department's internal procedures had been properly or timely followed, the courts
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`have granted the government's eventual motion to vacate the conviction and have the
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`indictment dismissed. See, e.g., Rinaldi, 434 U.S. at 23, 29-30; United States v. Houltin,
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`553 F.2d 991, 991-92 (5th Cir. 1977).
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`In Gaona-Romero v. Gonzales, 497 F.3d 694 (5th Cir. 2007), a government
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`motion seeking termination of a proceeding reflected a change in a different Justice
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`Department policy. The government moved to vacate a court of appeals decision
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`upholding the removal of an alien who had been convicted of a controlled substances
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`offense, but whose conviction had been vacated. The government reviewed its policy
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`with regard to such cases, and decided to follow a revised Board of Immigration
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`Appeals ("BIA") interpretation of "conviction," see 8 U.S.C. § 1101(a)(48)(A), to exclude
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`convictions that were vacated on the basis of procedural or substantive error. The
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`court of appeals granted the motion and "remand[ed] to the BIA so that the
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`government may
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`follow
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`through on
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`its pledge
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`to withdraw
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`the charge of
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`removability." Id. at 695.
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`In cases in which the government itself has come to the view that a given
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`defendant may not have been guilty of the crime of which he was convicted, the
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`government has similarly moved to discontinue or dismiss the prosecution. For
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`example, in United States v. Weber, 721 F.2d 266 (9th Cir. 1983), after Weber and his
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`codefendants had been convicted and sentenced, the Assistant United States Attorney
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`who had prosecuted the case interviewed Weber, received new information, and
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`reexamined the evidence. As a result he "develop[ed] a serious and substantial doubt
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`as to Weber's guilt," id. at 268, and the government moved under Rule 48(a) to
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`dismiss the indictment against Weber. The district court, while stating that it had "no
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`doubt" as to the prosecutor's "good faith doubt regarding Weber's guilt," id., denied
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`the motion, apparently believing such a motion could not be granted after the
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`defendant had been convicted, see id. at 269.
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`The court of appeals reversed, holding that "[s]eeking dismissal because
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`of the existence of such a reasonable doubt" as to the defendant's guilt is "not clearly
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`contrary to the manifest public interest." Id. (internal quotation marks omitted); see
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`also United States v. DiMattina, 571 F. App'x 50, 50 (2d Cir. 2014) ("Defendant Frank
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`DiMattina argues that his conviction for extortion is invalid because he did not 'obtain'
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`any property for purposes of the Hobbs Act. The Government, in its brief on appeal,
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`agrees and concedes that the judgment must be vacated in all respects. The
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`Government now seeks remand to the District Court 'so that [it] can move to dismiss
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`the indictment with prejudice under Rule 48(a) of the Federal Rules of Criminal
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`Procedure.' Appellee Br. 11. We agree that is the appropriate course of action.").
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`In United States v. Smith, 55 F.3d 157 (4th Cir. 1995) ("Smith"), Smith, who
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`had originally pleaded not guilty and was being tried with four codefendants, decided
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`mid-trial to plead guilty and agreed to testify against his codefendants. He testified
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`truthfully, but the codefendants were acquitted. The government then moved under
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`Rule 48(a) to dismiss the indictment against Smith, stating two reasons.
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`First, [it] pointed to the acquittal of Smith's four codefendants and
`expressed the opinion that if Smith had not pleaded guilty, he,
`too, certainly would have been acquitted. Second, the United
`States Attorney pointed out that after pleading guilty Smith
`cooperated with the government and testified truthfully. The
`United States Attorney emphasized that dismissal promoted
`credibility in future attempts to enlist defendants to plead guilty,
`cooperate with the government, and truthfully testify in return for
`lenient treatment.
` He summed up his reasons as follows:
`"Obviously, it is not only in the public interest to do what is fair
`and right, but it is also in the public's interest to encourage
`persons with knowledge to cooperate with the United States."
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`Id. at 160. The d