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United States v. Roy

United States Court of Appeals, Second Circuit

April 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
EMMANUEL ROY, Defendant-Appellant, DANNY SIONY, AKA RAHIM SIUNY KALIMI, SHIRIN KALIMI, AKA SHIRIN SIOUNY, TARIFF DILL, CONSTANTINE GIANNAKOS, Defendants

Argued April 2, 2015.

Appeal from a judgment of conviction following a jury trial on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349 (Griesa, J.). We hold that the district court did not err in instructing the jury on the two conspiracy counts because proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349 .

B. ALAN SEIDLER, New York, NY, for Defendant-Appellant.

ROBERT L. BOONE, Assistant United States Attorney (Brian A. Jacobs, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: KATZMANN, Chief Judge, POOLER and CARNEY, Circuit Judges.

OPINION

Page 419

Per Curiam:

Defendant Emmanuel Roy appeals from a judgment of conviction, entered on December 10, 2013, by the U.S. District Court for the Southern District of New York (Griesa, J. ), following a jury trial in which Roy was convicted of one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, three counts of wire fraud in violation of 18 U.S.C. § 1343, and one count of conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349. On appeal, Roy argues that the district court erred by failing to instruct the jury that proof of an overt act is required for a conviction under the two § 1349 conspiracy charges.[1] The question of whether a conspiracy conviction under § 1349 requires proof of an overt act is one of first impression in this Circuit. We hold that proof of an overt act is not required for a conspiracy conviction under 18 U.S.C. § 1349 and that the district court therefore did not err in its instructions on those charges.

BACKGROUND

Roy was charged in a five-count superseding indictment that was filed on November 13, 2012. Count One charged Roy with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. Counts Two, Three, and Four charged Roy with wire fraud in violation of 18 U.S.C. § 1343. Count Five charged Roy with conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349.

At the end of trial, the district court instructed the jury on the elements of each charged crime. Of particular relevance here, the district court did not instruct the jury that it must find that Roy committed an overt act in furtherance of the conspiracies charged in Counts One and Five of the Indictment.

After a seven-day jury trial, Roy was convicted on February 1, 2013 of all five counts. On December 5, 2013, the district court sentenced Roy to an aggregate term of 87 months' imprisonment, three years of supervised release, and a $500 mandatory special assessment. This timely appeal followed.

DISCUSSION

On appeal, Roy argues that the district court erred by not instructing the jury that, for it to convict on Count One or Count ...


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