Summary
This Second Circuit opinion addresses a petitioner's application for a writ of coram nobis following the Supreme Court's invalidation of the "right-to-control" theory of wire fraud. The court evaluates whether the erroneous inclusion of this theory during trial was harmless given the government's alternative misappropriation theory. Finding the misappropriation case comparatively weak, the court concludes the error was not harmless and reverses the district court's dismissal, remanding for entry of an order granting the petition.
Topics
Practice areas
Questions Presented
- Whether the inclusion of the invalid right‑to‑control theory in the jury instructions was harmless given the weak misappropriation theory.
- Which harmlessness standard applies in a coram nobis proceeding.
Holdings
- The government failed to meet its burden under the less burdensome Kotteakos standard; the error was not harmless and the district court judgment is reversed.
Key quotations
“We therefore REVERSE the district court judgment and REMAND for entry of an order granting the Petition.” (*12)
“We find it impossible to avoid grave doubt that the jury was “substantially swayed by” the presentation of the invalid right‑to‑control theory alongside the misappropriation theory.” (*14)
Factual background
Mark Johnson, as head of HSBC's FX desk, participated in a 2011 foreign‑exchange transaction for Cairn Energy. The government alleged two fraud theories—right‑to‑control (now invalid) and misappropriation. A jury returned a general verdict convicting Johnson on wire fraud and conspiracy counts.
Procedural history
Johnson was convicted in 2017 on two fraud theories, one later held invalid by the Supreme Court. He filed a coram nobis petition in the Eastern District of New York, which was denied. He appealed to the Second Circuit.
Remand instructions
Remand for entry of an order granting the petition for writ of coram nobis.