U.S. v. Sancho, No. 1101
| Court | U.S. Court of Appeals — Second Circuit |
| Writing for the Court | PER CURIAM |
| Citation | 157 F.3d 918 |
| Decision Date | 30 September 1998 |
| Docket Number | No. 1101,D |
| Parties | UNITED STATES of America, Appellee, v. Anthony SANCHO, Defendant-Appellant. ocket 97-1406. |
Page 918
v.
Anthony SANCHO, Defendant-Appellant.
Second Circuit.
Decided Sept. 30, 1998.
Edward S. Zas, The Legal Aid Society, New York City, for Defendant-Appellant.
Peter C. Sprung, New York City, (Mary Jo White, United States Attorney for the Southern District of New York, Dietrich L. Snell, Assistant United States Attorney (Of Counsel)), for Appellee.
Before: McLAUGHLIN and LEVAL, Circuit Judges, and POLLACK, District Judge. *
PER CURIAM:
Anthony Sancho appeals from a judgment of conviction entered in the United States District Court for the Southern District of
Page 919
New York (Shira A. Scheindlin, Judge ) on the charge of using interstate telephone communications in furtherance of a scheme to deprive the Tishman Construction Company ("TCC") of the intangible right of honest services of a person Sancho believed to be TCC's consultant, in violation of 18 U.S.C. §§ 1343 and 1346. Sancho contends his conviction must be vacated because neither he, nor the person whose honest services were the object of the scheme (who was in fact an undercover government agent posing as a TCC consultant), had a fiduciary relationship to TCC. Sancho contends such a fiduciary relationship is an essential element of the crime. We disagree and therefore affirm.In the spring of 1995, TCC contacted Sancho, who professed to be the developer of a real estate project then being planned for Asbury Park, New Jersey, to express interest in becoming the construction manager of the project. Sancho met with Daniel Tishman ("Tishman"), President of TCC, and offered TCC the job. During subsequent contract negotiations, Sancho requested that Tishman provide a standby letter of credit for an amount between $300 million and $420 million to secure a construction loan for the project. Sancho claimed the instrument would be "risk-free" and would yield TCC a rate of return of between 10 and 41 percent. In September 1995, Sancho sent Tishman a proposed contract that called for TCC to obtain a $400 million standby letter of credit but identified another firm as manager of the project. Tishman rejected this proposal and suggested he and Sancho meet again.
Sancho and Tishman met twice in October 1995. Meanwhile, FBI agents advised Tishman they were investigating Sancho with respect to an unrelated matter. With Tishman's consent, the agents surreptitiously tape-recorded the meetings between Sancho and Tishman. At those meetings, Tishman questioned Sancho about the letter of credit and Sancho's proposed financing program. Tishman said he would not sign a commitment letter until Sancho disclosed his primary funding source.
After the second tape-recorded meeting, Tishman introduced Sancho to Michael Keeley, an undercover FBI agent posing as "Michael Shannon," a financial consultant hired by TCC to perform due diligence on Sancho's proposal and report back to Tishman. In November and December 1995, the agent recorded several conversations with Sancho. At their first meeting on November 10, 1995, Sancho proposed that TCC provide a $500 million "risk-free" letter of credit that Sancho would place in an investment program operated by a firm called Equidev. The agent responded that before TCC would agree to proceed, he would need to investigate Equidev and determine that its financing program was sound. With Sancho's consent, the agent investigated Equidev. At a later meeting, the agent told Sancho that the investigation revealed Equidev was a fraud. The agent then told Sancho he would conceal this conclusion from TCC and advise it to proceed with Sancho's plan if Sancho paid him $1.25 million. Sancho agreed.
Sancho and the agent coordinated the details of their scheme in several subsequent conversations. In a telephone conversation of November 19, 1995, Sancho told the agent to tell Tishman that Equidev would provide $752 million in project financing. In a telephone conversation of November 21, 1995, the agent told Sancho that he had advised Tishman to proceed with Sancho's proposal and had not disclosed the conflict of interest arising from the payment he would receive from Sancho. Sancho stated that he would disguise the $1.25 million payment to protect the agent. In a telephone conversation of November 29, 1995, the agent asked Sancho for false documentation that would appear to substantiate the agent's due diligence work and recommendation. At their final meeting on December 3, 1995, the agent reported to Sancho that TCC had agreed to the proposal. Sancho then produced a "consulting agreement" documenting $1.25 million in phony commissions that the agent was to receive for supposedly assisting Sancho on three venture capital projects unrelated to the Asbury Park project. Sancho stated that the agent could display the document as proof that the payments were unrelated to the agent's consulting work for TCC. Immediately after the December 3 meeting, Sancho was arrested.
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The indictment charged that Sancho used interstate wire communications (telephone calls) on November 19 and 21, 1995, in furtherance of a scheme to deprive TCC of the intangible right of honest services of someone he believed to be TCC's consultant,...
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U.S. v. Ganim, No. 3:01CR263(JBA).
...United States v. Frost, 125 F.3d 346, 364 (6th Cir.1997), the Second Circuit expressly rejected this course in United States v. Sancho, 157 F.3d 918, 922 (2d Cir.1998) ("What the government must prove to satisfy [the honest services] element of the offense is defined by § 1346— not by judic......
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United States v. Lusk, CRIMINAL ACTION NO. 2:15-cr-00124
...duty to his employer to violate § 1346" (citing United States v. Ervasti, 201 F.3d 1029, 1036 (8th Cir. 2000) and United States v. Sancho, 157 F.3d 918, 920 (2d Cir. 1998))). The fiduciary duty requirement implicates a troubling analysis that has divided federal courts throughout the countr......
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U.S. v. Rybicki, No. 00-1043.
...at 263-64. In evaluating the as-applied claim, the panel concluded that it was bound by this court's decisions in United States v. Sancho, 157 F.3d 918 (2d Cir. 1998) (per curiam), cert. denied, 525 U.S. 1162, 119 S.Ct. 1076, 143 L.Ed.2d 79 (1999), and United States v. Middlemiss, 217 F.3d ......
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U.S. v. Triumph Capital Group, Inc., No. CR. 3:00CR217(AHN).
...in recent cases involving interpretation of § 1346 also supports this court's rejection of Spadoni's argument. In United States v. Sancho, 157 F.3d 918, 920 (2d Cir.1998), the court held "that [§ 1346] does not require an actual fiduciary relationship between the individual who defendant be......
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World Wrestling Entertainment v. Jakks Pacific, 04-CV-8223 (KMK).
...and therefore upheld the conviction of a defendant who sought to bribe an undercover agent, posing as a consultant to another company. See 157 F.3d 918, 921 (2d Cir.1998). Sancho, however, earned a red flag for its rejection of the use of pre-McNally caselaw to construe Section 1346. In Ryb......
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U.S. v. Milovanovic, 08-30381
...sufficient to come within the reach of the statute without regard to whether he was a true fiduciary. See United States v. Sancho, 157 F.3d 918, 920-22 (2d Cir.1998) (per curiam), overruled on other grounds by Rybicki, 354 F.3d at 144. Nevertheless, in an en banc case from the same Circuit,......
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U.S. v. Ganim, 3:01CR263(JBA).
...United States v. Frost, 125 F.3d 346, 364 (6th Cir.1997), the Second Circuit expressly rejected this course in United States v. Sancho, 157 F.3d 918, 922 (2d Cir.1998) ("What the government must prove to satisfy [the honest services] element of the offense is defined by § 1346— not by judic......
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U.S. v. Rybicki, 00-1043.
...at 263-64. In evaluating the as-applied claim, the panel concluded that it was bound by this court's decisions in United States v. Sancho, 157 F.3d 918 (2d Cir. 1998) (per curiam), cert. denied, 525 U.S. 1162, 119 S.Ct. 1076, 143 L.Ed.2d 79 (1999), and United States v. Middlemiss, 217 F.3d ......