USA v. Queri et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
-v- 	5:09-CR-418-2 (DNH)
BENJAMIN VILOSKI,
Petitioner-Defendant.
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APPEARANCES: 	OF COUNSEL:
UNITED STATES ATTORNEY 	STEVEN D. CLYMER, ESQ.
Northern District of New York 	Ass’t United States Attorney
100 South Clinton Street
Syracuse, NY 13261
HARRINGTON, MAHONEY 	MARK J. MAHONEY, ESQ.
LAW FIRM
Attorneys for Petitioner-Defendant
70 Niagara Street, 3rd Floor
Buffalo, NY 14202
DAVID N. HURD
United States District Judge
DECISION & ORDER
I. INTRODUCTION
Petitioner-Defendant Benjamin Viloski (“petitioner”) is a disbarred lawyer
and former real estate broker who took unlawful advantage of his business
relationship with Dick’s Sporting Goods (“DSG”), a sporting goods company
that operates a nationwide chain of retail stores.
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In 2011, a Utica federal jury convicted petitioner of conspiring to engage in
a fraudulent kickback scheme, mail fraud and money laundering crimes, and
making a false statement to investigators. As relevant here, the indictment
alleged, and the jury was later charged on, two distinct theories of fraud.
The first theory of fraud was the kind that would be familiar to any reader
(a scheme targeting other people’s money). But the second fraud theory was
of a somewhat more technical variety (a scheme to deprive the business of the
“right to control” the use of its assets).
Since at least 1991, this “right to control” theory was recognized as a valid
way to prosecute someone for mail or wire fraud in our circuit. United States
v. Wallach, 935 F.2d 445, 461–64 (2d Cir. 1991). But years after petitioner
had finished serving his sentence in this case, the Supreme Court held that
the “right to control” theory of fraud was invalid. Ciminelli v. United States,
598 U.S. 306 (2023).
On May 10, 2024, petitioner filed this petition for a writ of error coram
nobis seeking to vacate his conviction. Dkt. No. 409. The United States of
America (the “Government”) has opposed relief, Dkt. No. 413, petitioner has
replied, Dkt. No. 420, and the parties have submitted supplemental briefing
on recent Second Circuit precedent on this issue, Dkt. Nos. 421, 422.
The petition has been fully briefed and will be considered on the basis of
the submissions without oral argument.
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II. BACKGROUND
Between 1998 and 2005, petitioner was a Pittsburgh-based attorney and
real estate broker who worked with DSG on development projects, including
the construction of DSG retail stores. Petitioner took unlawful advantage of
this arrangement by conspiring with others to obtain illegal kickbacks in the
form of brokerage and/or consulting payments from DSG’s counterparties.
The scheme began with an insider—a man named Joseph Queri (“Queri”),
one of DSG’s senior vice presidents. Queri’s job required him to identify real
estate suitable for conversion into new DSG stores and to enter into contracts
with real estate developers and landlords for this purpose.
As relevant here, it was common for businesses like DSG to retain brokers
and/or consultants to facilitate these kind of real estate transactions, just as
it was common for the developers and landlords (and not the big retailers) to
pay the commissions and/or fees on these transactions.
Queri had the authority to select brokers and attorneys for this work. But
Queri, who was experienced in these transactions, could often handle the job
without the services of a broker. Although this experience should have saved
on transaction costs, Queri and petitioner saw this as an opportunity to make
some easy money by charging the fees anyway.
The men agreed that petitioner would pose as DSG’s broker or consultant
on these deals—he would have to do little or no work, but these transactions
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would still generate commissions and/or fees. Petitioner, for his part, would
generate and submit sham agreements and fraudulent invoices, accept these
unearned payments, and then funnel the fraudulent proceeds through front
companies he created. Petitioner kicked a share of this money back to Queri,
who laundered the kickbacks through bank accounts and entities controlled
by another man named Gary Gosson (“Gosson”).
All told, this fraudulent scheme involved 27 development projects (22 of
which directly involved petitioner) and resulted in $2.1 million in laundered
proceeds. Petitioner kicked back more than $1.2 million of this money to
Queri as part of the scheme. First in 2008 and again in 2009, petitioner
made false statements to agents who were investigating these payments.
Eventually the scheme unraveled. On November 18, 2009, a federal grand
jury sitting in the Northern District of New York returned a first superseding
indictment that charged petitioner with:
Count One—conspiracy to commit mail and wire
fraud, including deprivation of honest services mail
and wire fraud in violation of 18 U.S.C. §§ 371, 1341,
1343, and 1346;
Counts Two through Six—mail fraud and deprivation
of honest services mail fraud in violation of 18 U.S.C.
§§ 1341 and 1346;
Counts Seven through Eleven—wire fraud and
deprivation of honest services wire fraud in violation
of 18 U.S.C. §§ 1343 and 1346;
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Count Twelve—conspiracy to commit money
laundering and transactions in criminally derived
property in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i)
and (h) and 1957(a);
Counts Thirteen through Fifteen—aiding and
abetting concealment money laundering in violation
of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2;
Counts Sixteen through Nineteen—aiding and
abetting transactions in criminally derived property
in violation of 18 U.S.C. §§ 1957(a) and 2; and
Count Thirty-One—false statements in violation of 18
U.S.C. § 1001.
Dkt. No. 41. This indictment included a forfeiture allegation seeking, inter
alia, a money judgment for the sum total of the ill-gotten gains. See id.
Notably, this indictment alleged that petitioner and his co-conspirators
(Queri and Gosson) engaged in a kickback scheme that established three
distinct grounds for fraud liability:
(1) 	“to 	defraud 	[DSG], 	its 	shareholders, 	various
landlords, real estate developers, investors, property
owners and others involved in the development of new
[DSG] stores . . . and to obtain money and property”;
(2) 	“to 	deprive 	[DSG] 	and 	its 	shareholders 	of 	the
intangible right of the honest services of its officers
and employees”; and
(3) 	“to 	deprive 	[DSG] 	of 	potentially 	valuable
information that could impact its economic decisions.
Dkt. No. 41 ¶ 10.
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In the run up to trial, the Government notified the Court that it intended
to abandon the second theory of liability in light of Skilling v. United States,
561 U.S. 358 (2010), which narrowed the range of conduct criminalized by 18
U.S.C. § 1346, the honest services fraud statute. See Dkt. No. 117.
The Government maintained that Skilling did not preclude § 1346 liability
for the kickback scheme alleged in the indictment.1 Instead, the Government
believed that omitting this theory of liability would avoid delay and simplify
the jury instructions. The Court agreed, Dkt. No. 131, and a redacted version
of the first superseding indictment was prepared for the jury. Dkt. No. 259.
Petitioner took the case to trial in the summer of 2011. After roughly two
weeks, the jury found petitioner guilty of the mail and wire fraud conspiracy
charged in Count One, two substantive counts of mail fraud alleged in Counts
Two and Five, the money-laundering conspiracy charged in Count Twelve,
the two substantive counts of money laundering alleged in Counts Thirteen
through Fifteen, the charge of engaging in transactions in criminally derived
property in Count Sixteen, and making a false statement in Count Thirty-
One. Dkt. No. 261. Petitioner was acquitted on the other counts. Id.
On January 13, 2012, after resolving post-trial motions, Dkt. No. 289, the
Court sentenced petitioner to concurrent terms of 60 months’ imprisonment,
1 There is more to say about Skilling, which is covered in detail in the IV. Discussion infra.
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three years of supervised release, and $75,000 in restitution to certain named
victims. Dkt. No. 338. The Court also entered an order of forfeiture in the
amount of $1,273,285.50, for which petitioner and two of his co-defendants
(Queri and Gosson) were jointly and severally liable.2 Dkt. Nos. 306, 343.
Petitioner took a direct appeal. Dkt. No. 333. A panel of the U.S. Court of
Appeals affirmed his conviction and sentence but remanded for consideration
of whether the forfeiture order might have violated the Eighth Amendment’s
Excessive Fines Clause. See United States v. Viloski, 557 F. App’x 28 (2d Cir.
2014) (summary order). Petitioner sought Supreme Court review, which was
denied. Viloski v. United States, 575 U.S. 935 (2015).
On remand, the Court reconsidered the forfeiture order, concluded that it
was constitutional under the circumstances, and reimposed the same money
judgment. United States v. Viloski, 53 F. Supp. 3d 526 (N.D.N.Y. 2014).
Petitioner took another direct appeal, Dkt. No. 401, but this time around
the Second Circuit rejected his arguments and affirmed. See United States v.
Viloski, 814 F.3d 104 (2d Cir. 2016). Petitioner again sought Supreme Court
review, which was denied. Viloski v. United States, 580 U.S. 1171 (2017).
On June 14, 2016, petitioner completed his prison sentence and began his
term of supervised release, which expired on June 13, 2019. Dkt. No. 409 ¶ 6.
2 The calculation of this total money judgment was conservative, reflecting only the kickback
payments in which petitioner was personally involved. See, e.g., Dkt. No. 304.
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Petitioner remains liable for the unpaid money judgment imposed in the final
order of forfeiture. See Dkt. No. 410.
III. LEGAL STANDARD
“A coram nobis petition is a collateral proceeding through which a court
may correct fundamental errors in a prior final judgment.” Moskowitz v.
United States, 64 F. Supp. 3d 574, 577 (S.D.N.Y. 2014) (citing United States
v. Morgan, 346 U.S. 502, 507–08 (1954)). Relief is “strictly limited to those
cases in which errors . . . of the most fundamental character have rendered
the proceeding itself irregular and invalid.” Foont v. United States, 93 F.3d
76, 78 (2d Cir. 1996) (cleaned up).
To obtain coram nobis relief, a petitioner must show that: “1) there are
circumstances compelling such action to achieve justice, 2) sound reasons
exist for failure to seek appropriate earlier relief, and 3) [he] continues to
suffer legal consequences from his conviction that may be remedied by
granting of the writ.” Johnson v. United States, 144 F.4th 133, 141–42 (2d
Cir. 2025) (quoting Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014)).
“The burden is a heavy one because a court reviewing a petition for coram
nobis relief ‘must presume that the proceedings were correct, and the burden
of showing otherwise rests on the petitioner.’” United States v. Rutigliano,
887 F.3d 98, 108 (2d Cir. 2018) (quoting United States v. Mandanici, 205 F.3d
519, 524 (2d Cir. 2000)).
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IV. DISCUSSION
Petitioner argues he is entitled to coram nobis relief because the Supreme
Court has “invalidated” the “foundation” of this prosecution. Dkt. No. 409 ¶
7. As petitioner explains, in Ciminelli v. United States, the Supreme Court
rejected the so-called “right to control” theory of fraud. Id. ¶ 8. Therefore, in
his view, “he stands convicted for what the Supreme Court now holds is not a
crime.” Id. ¶ 9. Accordingly, petitioner contends that his conviction should
be vacated and that he should be issued a refund. See id.
In opposition, the Government acknowledges that Ciminelli “narrowed the
range of conduct that violates the mail and wire fraud statutes” and it agrees
that Ciminelli “applies retroactively, including on a collateral attack” such as
the one being asserted by petitioner. Dkt. No. 413 at 26 n.6.
But even so, the Government contends that petitioner’s arguments fail to
account for the fact that the indictment also alleged an alternative basis for
liability—a “pecuniary” theory “involving tangible property in the form of
money”—that remains completely valid even after Ciminelli. Id. at 27.
As the Government explains, the record establishes that the jury relied on
this “pecuniary” theory of fraud when it convicted petitioner. Dkt. No. 413 at
28–30. In support of this argument, the Government points to the proof that
petitioner’s fraud scheme also deprived other businesses (and not just DSG)
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of money—petitioner charged these victims bogus referral and consulting fees
that were passed back to Queri. Dkt. No. 413 at 28–30.
The Government emphasizes that this classic, familiar theory of fraud was
alleged in the indictment, proven at trial, charged to the jury, recognized by
this Court in its restitution order, and (at least indirectly) affirmed on direct
appeal. Dkt. No. 413 at 28–40. Thus, in the Government’s view, Ciminelli is
not enough to establish a basis for extraordinary coram nobis relief. See id.
Coram nobis “functions as a habeas analogue for non-custodial aspects of a
criminal punishment.” Moskowitz, 64 F. Supp. 3d at 577 (citing Kaminski v.
United States, 339 F.3d 84, 89–90 (2d Cir. 2003). “Like habeas relief, coram
nobis relief lies in tension with the public’s interest in finality of judgment.”
Id. (citing Foont, 93 F.3d at 80).
“An important difference between habeas relief and coram nobis lies in the
fact that, because the latter comes after the petitioner has completed his
sentence, the petitioner will not be retried; thus, the granting of coram nobis
normally results in the expungement of the conviction, with no possibility of
further proceedings to determine whether the petitioner was guilty of the
offense charged.” United States v. Mandanici, 205 F.3d 519, 532 (2d Cir.
2000) (Kearse, J., concurring).
Upon careful review of the record, and mindful of the extraordinary nature
of coram nobis, petitioner is not entitled to relief because he has not satisfied
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the first element needed for coram nobis relief, i.e., “there are circumstances
compelling such action to achieve justice.”
The record shows just the opposite is true: granting petitioner relief would
result in the expungement, without the possibility of reinstatement, of the
conviction of someone who was validly convicted of mail fraud by the jury on
a straightforward theory—that he schemed to deprive the victims of money.3
To understand why, it helps to unpack the history of the federal mail and
wire fraud statutes. The modern version of these statutes trace their history
back to the original mail fraud law, which was enacted in 1872 as part of the
recodification of the postal code. See McNally v. United States, 483 U.S. 350,
356 (1987).
This original statute criminalized use of the mails to advance “any scheme
to artifice or defraud.” Skilling, 561 U.S. at 399. In 1909, Congress amended
the statute to include language that also criminalized “any scheme or artifice
to defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises.” Id. (citation omitted).
3 As discussed infra, petitioner has not sought coram nobis relief from his felony conviction for
making a false statement. See Dkt. Nos. 409, 410. After the Government pointed this out, Dkt. No.
413 at 9 n.1, petitioner demanded a new trial on that conviction in his reply. Dkt. No. 420. Putting
aside the fact that it is usually improper to raise new arguments in a reply, there is no need to reach
that issue under these circumstances. But if there were a reason to do so, the Court agrees with the
Government: there is no legal rule that would permit petitioner to seek a new trial at this very late
stage of the case. See Dkt. No. 422 at 1 n.1.
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That basic formulation remains true today. Currently, the mail and wire
fraud statutes make it a crime to devise, or to intend to devise, “any scheme
or artifice to defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1341, 1343.
But a good deal of change has come to this area of criminal law since the
1909 congressional amendment. Without getting bogged down in the details,
Congress’s choice of language—the amendment is phrased with a disjunctive
“or”— gave courts license to broaden the scope of criminal liability for fraud
“to include deprivations not only of money or property, but also of intangible
rights.” Skilling, 561 U.S. at 400.
These “intangible rights” included a wide range of concepts, stretching out
to cover everything from the right to “honest services,” Skilling, 561 U.S. at
400, to far more abstract theories of harm, such as “the right of the citizenry
to an honest election.” Ciminelli, 598 U.S. at 313 (cleaned up).
As relevant here, every circuit court in the country eventually decided that
the mail fraud statute criminalized an “intangible right” to “honest services,”
i.e., that an employee “could be prosecuted under the mail-fraud statute if he
breached his allegiance to his employer by accepting bribes or kickbacks in
the course of his employment.” Skilling, 561 U.S. at 401 (cleaned up).
The Supreme Court disagreed. In 1987, in McNally v. United States, 483
U.S. 350, the Supreme Court rejected this “intangible rights” theory of fraud.
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In brief, McNally was about a state official who was responsible for selecting
the state’s insurance agent. Id. at 352. The official arranged a kickback of
fees from the agent in exchange for the state’s business. Id. at 352–53.
Notably, the state’s prosecution had not charged this corrupt official with
defrauding the state of any money or property, alleged that the state might
have paid a lower premium or obtained better insurance elsewhere, or even
claimed that the state had been “deprived of control over how its money was
spent.” McNally, 483 U.S. at 360.
Instead, the prosecution’s theory of the case was simply that the corrupt
state official’s kickback scheme had “defrauded the citizens and government”
of “intangible rights,” such as the right to have the state’s affairs “conducted
honestly.” McNally, 483 U.S. at 352.
The Supreme Court rejected this rationale and reversed the convictions of
the state official and his co-defendant. “Rather than construe the statute in a
manner that leaves its outer boundaries ambiguous and involves the Federal
Government in setting standards of disclosure and good government for local
and state officials,” the Court held that the mail fraud statute is “limited in
scope to the protection of property rights.” McNally, 483 U.S. at 360.
Notably, however, the Supreme Court in McNally suggested that Congress
could criminalize “honest services” fraud if it passed a new law. And in 1988,
Congress responded by enacting a new statute “specifically to cover one of the
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‘intangible rights’ that lower courts had protected . . . prior to McNally: ‘the
intangible right of honest services.’” Cleveland v. United States, 531 U.S. 12,
19–20 (citation omitted).
This new honest services fraud statute, codified at 18 U.S.C. § 1346, relies
on the existing mail (§ 1341) and wire (§ 1343) fraud statutes. Section 1346
provides that a “scheme to artifice or defraud” (defined by the existing mail
and wire fraud statutes) “includes a scheme or artifice to deprive another of
the intangible right of honest services.” 18 U.S.C. § 1346.
As with mail and wire fraud, the honest services fraud statute remains on
the books. But as before, prosecutions under this statute eventually crossed
the boundaries of the “core” intangible interests covered under § 1346. Thus,
in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court weighed
in again, holding that § 1346 criminalizes “only the bribe-and-kickback core
of the pre-McNally case law.” Id. at 410 (emphasis in original).
But that is only half of the story of “intangible rights.” After McNally was
decided in 1987, and independent of the new honest services fraud law that
Congress enacted in response in 1988, some federal courts started developing
the pre-McNally “intangible interests” doctrine along a different axis.
These courts relied on a passing reference in McNally—the one about how
the state had not been “deprived of control over how its money was spent”—to
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endorse mail and wire fraud prosecutions based on an entirely new theory of
“intangible rights.”
This theory was based on the deprivation of a victim’s “right to control” its
own assets or, relatedly, the deprivation of “potentially valuable information”
that could impact a victim’s discretionary economic decisions. United States
v. Finazzo, 850 F.3d 94, 112 (2d Cir. 2017). The Second Circuit soon endorsed
this novel theory, reasoning that the “right to control” qualified as a “property
interest.” United States v. Wallach, 935 F.2d 445, 462–63 (2d Cir. 1991).
This intangible “right to control” theory of fraud liability was distinct from
the deprivation of the intangible right to “honest services” (enacted in § 1346
and limited by Skilling) and from the traditional, tangible theory of mail and
wire fraud that has been with us forever: based on a scheme to target “money
or property.” See United States v. Walker, 191 F.3d 326, 335 (2d Cir. 1999).
This was the state of affairs in 2009, when a grand jury returned the first
superseding indictment against petitioner. In the Second Circuit, there were
three viable theories of mail and wire fraud, and the indictment charged him
with all three of them: (a) “pecuniary” fraud, which involved the deprivation
of money and property; (b) “honest services mail fraud” based on § 1346; and
(c) the “right to control” theory. Dkt. No. 41.
As noted supra, the Government abandoned the (b) “honest services mail
fraud” theory in the pre-trial proceedings after the Supreme Court decided
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Skilling v. United States in the summer of 2010. Dkt. No. 117. Thus, when
petitioner finally went to trial the next summer, only the (a) the “pecuniary”
theory and the (c) “right to control” theory remained. See Dkt. No. 259.
On July 29, 2011, after being charged on both theories, the jury convicted
petitioner of conspiracy to commit mail and wire fraud and two substantive
counts of mail fraud. Dkt. No. 261. Petitioner served his prison time and
was released from supervision on June 13, 2019. Dkt. No. 409 ¶ 6.
Although it declined to take up petitioner’s conviction, the Supreme Court
had not finished limiting the reach of the federal fraud statutes. Years after
petitioner was released from custody, the Supreme Court decided Ciminelli v.
United States, 598 U.S. 306 (2023). In Ciminelli, the Supreme Court rejected
the “right to control” theory of fraud. Id. There, the Court reiterated that
“the federal fraud statutes criminalize only schemes to deprive people of
traditional property interests,” like money. See id. at 316.4
This recitation of the history of the federal fraud statutes brings us to the
central question presented by petitioner’s coram nobis petition: what impact,
if any, should Ciminelli have on his conviction? Ordinarily, when “a jury is
presented with an illegal or unconstitutional basis for conviction and a legally
4 Ciminelli cited petitioner’s prosecution when observing that the “right to control” theory risked
criminalizing “almost any deceptive act.” 598 U.S. at 315 (citing United States v. Viloski, 557 F.
App’x 28 (2d Cir. 2014) (summary order)).
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valid basis, a so-called Yates error5 arises if the jury returns a general verdict
and a court cannot determine upon which basis the jury convicted.” Johnson,
144 F.4th at 142 (citing Griffin v. United States, 502 U.S. 46, 56 (1991)).
Of course, at the time of the jury’s verdict in this case the “right to control”
theory had not been recognized as “illegal or unconstitutional.” But that does
not matter for the purpose of coram nobis review. Johnson, 144 F.4th at 142.
Indeed, the Government candidly acknowledges as much. Dkt. No. 413 at 26
& n.6.
Importantly, however, “Yates errors are not structural and are subject to
harmlessness review.” Johnson, 144 F.4th at 142. There are two harmless
error standards. The first is from Kotteakos v. United States, 328 U.S. 750
(1946). Kotteakos requires the Government to demonstrate that the error did
not have a “substantial and injurious effect or influence in determining the
jury’s verdict.” The second one is from Chapman v. California, 386 U.S. 18,
24 (1967). Chapman requires the Government to demonstrate that the error
“was harmless beyond a reasonable doubt.” Under either of these standards,
the Government bears the burden of persuasion. Johnson, 144 F.th at 143.
The last-ditch procedural posture of this coram nobis petition means that
the harmless error standard from Kotteakos applies. As the Supreme Court
5 So named for Yates v. United States, 354 U.S. 298 (1957).
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explained, “[t]he Kotteakos harmless-error standard is better tailored to the
nature and purpose of collateral review than the Chapman standard.” Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993).
The Kotteakos standard is met when the judge is in “grave doubt” about
the trial error’s impact on the jury. O’Neal v. McAninch, 513 U.S. 432, 435
(1995). “A judge is in ‘grave doubt’ when the matter is so evenly balanced
that the judge feels himself in virtual equipoise as to the harmlessness of the
error.’” Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997) (quoting
O’Neal, 513 U.S. at 435).
Measured against this general body of law, the particular facts that were
proven at trial establish that the Yates error was harmless.6 “Where there
are several ways to violate a criminal statute, as there are with the mail
fraud statute, federal pleading requires that an indictment charge in the
conjunctive to inform the accused fully of the charges.” United States v.
McDonough, 56 F.3d 381, 390 (2d Cir. 1995) (cleaned up).
Typically, “[a] conviction under such an indictment will be sustained if the
evidence indicates that the statute was violated in any of the ways charged.”
6 The Second Circuit has suggested that the Supreme Court’s rationale for “preferring Kotteakos
in collateral review” might not be applicable where, as here, a petitioner seeks to vacate “a federal
conviction originating in this Circuit.” Johnson, 144 F.4th at 143. However, because the question of
whether Kotteakos or Chapman applies in coram nobis remains an open one in this circuit, see id. at
142–43, and because coram nobis is an “extraordinary remedy” reserved for “extreme cases,” Denedo,
556 U.S. at 916, the Court will rely on the Supreme Court’s existing guidance and apply Kotteakos.
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McDonough, 56 F.3d at 390 (citation omitted). As explained supra, the jury
wound up considering whether petitioner had committed mail or wire fraud
in two distinct ways: (a) the “pecuniary” theory and the (c) “right to control”
theory. The jury was instructed that it could convict petitioner under either
theory. Dkt. No. 413 at 27–28 (summarizing relevant trial transcript).
Further, in denying petitioner’s post-trial motions, the Court found that
the trial evidence supported both theories of fraud as to DSG:
THE COURT: . . . . [T]here was sufficient proof to
establish [petitioner’s] guilt on the mail fraud and
conspiracy to commit mail and wire fraud counts. The
proof at trial did not establish merely a breach of
fiduciary duty. 	To the contrary, there was evidence
that false representations were made to [DSG], that
[DSG] suffered a loss, and there was intent to defraud.
Further, over objections by the defense, it was made
clear 	that 	the 	failure 	to 	disclose 	information 	may
constitute a fraudulent representation under certain
conditions. 	The concept that the scheme to defraud
must result in actual loss or the receipt of money or
property has also been rejected. 	It is enough that the
scheme to defraud was intended to deprive another of
a property right.
Dkt. No. 388 at 32. Notably, in addition to the evidence proving that DSG
was a victim of the fraud scheme and conspiracy, there was plenty of proof
that the scheme and conspiracy also deprived other businesses of tangible
property—money.
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For instance, petitioner schemed “Classic Real Estate,” a family-owned
real estate brokerage, out of $25,000 as a sham “referral fee” to one of the
front companies that petitioner created to facilitate the fraud scheme. Dkt.
No. 413 at 28–29 (summarizing trial testimony). Likewise, a second victim,
“COR Development,” forked over $50,000 after another one of petitioner’s
front companies sent a bogus invoice for consulting fees. See id. at 29–30.
After petitioner’s conviction, the Government sought restitution for these
two victims (and for DSG). Dkt. No. 318. The Court ordered petitioner to pay
restitution in the amounts of $25,000 to Classic Real Estate and $50,000 to
COR Development. Dkt. No. 338.
Importantly, as the Government points out, the indictment did not allege
the “right to control” theory of fraud as to these two businesses. Instead, the
indictment only alleged that these two victims were subjected to the classic,
tangible “pecuniary” theory of fraud—a scheme to wrongfully deprive them of
their money. Dkt. No. 413 at 31 (citing Dkt. No. 41 at 4–5).
In short, the trial evidence established that the Government proved this
pecuniary theory of fraud. And under these particular circumstances, there
is no indication that the Yates error—the fact the jury was charged on two
alternate bases of fraud, one of which was later shot down by the Supreme
Court—had a “substantial and injurious effect or influence” on the verdict.
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Petitioner tries to avoid this conclusion by pointing to Johnson v. United
States, 144 F.4th 133 (2d Cir. 2025), a recent case in which the Second Circuit
vacated and remanded with instructions to grant a writ of error coram nobis
to a petitioner who had been convicted by a jury of wire fraud and conspiracy
to commit wire fraud.
The facts of Johnson are complex. Briefly stated, though, the defendant
was the global head of a massive bank’s foreign exchange trading desk. He
was charged with wire fraud for his role in a transaction in which his bank-
employer “converted U.S. Dollars into 2.25 billion British Pounds” for an oil
and gas company. 144 F.4th at 136.
As relevant here, the jury in the Johnson defendant’s case considered two
theories of fraud: a valid “misappropriation” theory of fraud and the since-
invalidated “right to control” theory of fraud. 144 F.4th at 136. Thereafter,
the jury returned a general verdict that convicted the defendant and, after
he exhausted his appeals, the defendant completed his prison sentence. Id.
As here, the defendant sought coram nobis relief after the Supreme Court
decided Ciminell, which invalidated the “right to control” theory of fraud. As
here, the Government opposed relief on the ground that submitting the now-
invalid theory to the jury was harmless error because the defendant was also
convicted under a valid, alternate “misappropriation” theory of wire fraud.
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The trial court denied coram nobis relief. Johnson, 144 F.4th at 136. But
the Second Circuit reversed with instructions to grant the writ. In doing so,
the Johnson panel reasoned that the Government’s alternate theory against
the defendant “was weak” and it was therefore “very unlikely” to have been
an independent basis for his conviction. Id.
The problem for petitioner is that Johnson is readily distinguishable from
what happened in this prosecution. Notably, the defendant in Johnson was a
sophisticated investment banker charged with relatively complicated theories
of fraud: the “right to control” and the “misappropriation” theories.
As the Second Circuit explained in detail, this “misappropriation” theory
was far more “complicated and contestable” than the already complex “right
to control” theory. Johnson, 144 F.4th at 146. Under the circumstances of
that case, the appellate panel was left with “grave doubt” about whether that
jury “would have reached unanimous agreement on the more complicated and
contestable misappropriation theory when it had the right-to-control theory
as an available alternative.” Id.
Exactly the opposite is true in this case. The jury was presented with the
“right to control” theory of fraud alongside a much more straightforward one:
a scheme to obtain money from the victims. There is a strong basis in this
record—as set out in detail supra—to conclude that the jury voted to convict
petitioner on the still-valid, far less complicated theory. Unlike Johnson, this
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record does not permit much doubt, let alone any “grave doubt.” Accordingly,
Ciminelli does not warrant coram nobis relief.
Petitioner’s remaining arguments fare no better. To warrant coram nobis
relief, a petitioner must show that he “continues to suffer legal consequences
from his conviction that may be remedied by granting of the writ.” Kovacs,
744 F.3d at 49. Broadly speaking, petitioner identifies three: (1) the loss of
his law and real estate licenses; (2) his inability to travel abroad, including to
Canada; and (3) his liability for the forfeiture order. Dkt. No. 410 at 19–21.
First, as the Government points out, petitioner has failed to challenge his
felony conviction for making a false statement (in Count 31). Thus, even if
coram nobis relief were otherwise appropriate, petitioner would have a valid
felony conviction. So it is unclear how vacatur of the fraud counts would let
him recover his licenses. United States v. Persico, 242 F.3d 369 (2d Cir. 2000)
(summary order) (affirming denial of coram nobis where petitioner “would
remain a convicted felon (with all the attendant legal consequences) even if
his [other counts of conviction] were vacated”); United States v. Verrusio,
2017 WL 1437055, at *10 (D.D.C. Apr. 21, 2017) (“Even if defendant’s
convictions for Counts One and Two were vacated, however, his felony
conviction on Count Three for making a false statement . . . would remain
intact, along with all its encumbrances under [ ] State and Federal law . . . .”).
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Second, in addition to the issue of how this still-valid felony conviction for
making a false statement would impact his ability to travel abroad, it is hard
to see how a foreign government’s admissibility policies can qualify as a legal
harm that is cognizable for purposes of coram nobis relief. Howard v. United
States, 962 F.2d 651, 655 (7th Cir. 1992) (opining that “the loss of the right to
travel to a foreign country does not appear to be a civil disability of the type
justifying the issuance of a writ of error coram nobis”); but see Johnson, 144
F.4th at 142 (accepting lower court’s finding about restriction on travel).
Third, although it seems like it should be easy to do, petitioner has failed
to explain how his liability for the still-unpaid order of forfeiture is the kind
of ongoing legal harm that would justify coram nobis relief, especially in light
of the fact that, at best, this kind of extraordinary relief would only seem to
be appropriate as to the fraud counts of conviction.
The Government offers reasons to conclude that this still-unpaid forfeiture
might not even qualify as an ongoing legal harm, at least for the purpose of
coram nobis relief. Dkt. No. 413 at 43–44. Although that is counterintuitive,
petitioner has not put together a good argument to the contrary.
Instead, petitioner simply argues that in the absence of a valid conviction,
the collateral consequences of that conviction must be vacated. Dkt. No. 410
at 19–20. Although that is likely an accurate statement of the law, United
States v. Libous, 858 F.3d 64, 67 (2d Cir. 2017), it does not grapple with the
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nuance that would be presented in a case like this one, where even if relief
were appropriate at least one felony count of conviction would remain valid.
In sum, petitioner is not entitled to coram nobis relief because, under the
circumstances of this case, the Yates error was harmless. Because the record
strongly shows that the jury convicted petitioner on a completely valid theory
of fraud, he cannot show that “there are circumstances compelling [ ] action
to achieve justice.” Accordingly, the petition will be denied.
IV. CONCLUSION
Therefore, it is
ORDERED that
1. Petitioner-Defendant’s (Dkt. No. 409) motion is DENIED.
IT IS SO ORDERED.
Dated: January 14, 2026
Utica, New York.
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