Ciminelli v. United States/Opinion of Justice Alito
SUPREME COURT OF THE UNITED STATES
No. 21–1170
LOUIS CIMINELLI, PETITIONER v. UNITED STATES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[May 11, 2023]
Justice Alito, 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.