United States v. Full Play Grp.
| Docket Number | 15-CR-252 (PKC) |
| Decision Date | 29 October 2021 |
| Parties | UNITED STATES OF AMERICA, v. FULL PLAY GROUP, S.A., HERNAN LOPEZ, and CARLOS MARTINEZ, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Defendants Full Play Group, S.A. (“Full Play”), Hernan Lopez, and Carlos Martinez move for dismissal of the indictment under Federal Rule of Criminal Procedure 12(b)(3) as well as for a bill of particulars under Federal Rule of Criminal Procedure 7(f).[1] (See Dkts. 1553, 1554, 1594 1595.) Additionally, Defendants Full Play and Martinez have renewed motions for severance under Federal Rule of Criminal Procedure 14(a). (See Dkts. 1593, 1594.)
On September 17, 2021, the Court held oral argument and partially ruled on the various motions. In the context of the bill-of-particulars motion, the Court directed the Government “to provide for each Defendant a list ‘specifying the transactions[-]for example, the marketing contracts broadcasting contracts, tournament hosting designations etc.[-]that the Government will seek to prove were tainted by an unlawful conspiracy of which' that Defendant was a part.” (9/17/2021 Minute Entry (quoting United States v. Hawit, No. 15-CR-252 (PKC), 2017 WL 663542, at *11 (E.D.N.Y. Feb. 17, 2017)).) The Court also directed the Government to “provide the year(s) when Defendants Lopez and Martinez are alleged to have become aware of the Copa Libertadores #2 scheme” in which they are charged. (Id.) The Court denied Full Play's and Martinez's renewed motions for severance and denied the motions to dismiss to the extent that they sought dismissal based on an argument that the charges are impermissible extraterritorial applications of the wire-fraud and wire-fraud-conspiracy statutes. (Id.) The Court reserved decision on the remainder of the motions to dismiss and motions for a bill of particulars.
For the reasons discussed below, those remaining portions of Defendants' motions to dismiss and motions for a bill of particulars are hereby denied.
This case commenced on May 20, 2015, when a grand jury in this District returned an indictment charging 14 defendants with racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, various wire-fraud and money-laundering conspiracies, and other crimes relating to alleged bribery and kickback schemes connected to international organized soccer. (See generally Dkt. 1.) Six months later, on November 25, 2015, the grand jury returned a superseding (“S-1”) indictment charging additional defendants. (See generally Dkt. 102.)
In 2017, this Court presided over a jury trial of three defendants named in the S-1 indictment: Juan Ángel Napout, José Maria Marin, and Manuel Burga. Prior to the 2017 trial, only one of those defendants, Napout, moved for a bill of particulars. (See generally Napout's Motion for Bill of Particulars (“Napout Mot.”), Dkt. 490.) Napout-who was charged with wire-fraud and money-laundering conspiracies related to the CONMEBOL Copa Libertadores, [2] wire-fraud and money-laundering conspiracies related to the CONMEBOL/CONCACAF Copa América Centenario, [3] and the overarching RICO conspiracy (see S-1 Indictment, Dkt. 102, ¶¶ 362-64, 378- 81, 501-04)-requested a bill of particulars specifying “details about any involvement in, or acts he [was] alleged to have committed, ” in furtherance of the charged conspiracies, including: (i) “any information regarding any bribe solicited and/or received”; (ii) “any transaction” evidencing such a bribe; (iii) “any use of wire facilities and/or financial institutions in the United States or elsewhere used to make or receive any bribe”; (iv) “any conduct engaged in to prevent detection of the illegal activities”; and (v) “any documentary evidence” supporting any of the criminal acts asserted against Napout (Napout Mot., Dkt. 490, at 1-2). Napout also requested the identities and aliases of unindicted co-conspirators. (Id. at 2.)
The Court determined that Napout was entitled to a bill of particulars “specifying the transactions-for example, the marketing contracts, broadcasting contracts, tournament hosting designations, etc.-that the Government will seek to prove were tainted by an unlawful conspiracy of which Napout was a part.” United States v. Hawit, No. 15-CR-252 (PKC), 2017 WL 663542, at *11 (E.D.N.Y. Feb. 17, 2017). The Court reasoned that without such information, Napout was being “accused of having committed unlawful acts in connection with a category of transactions” without sufficient notice of the “specific transactions falling within that category [that were] alleged to have been tainted by unlawful conduct.” Id. The Court otherwise denied Napout's motion “as seeking information beyond that required to prepare a defense, ” explaining that the Federal Rules of Criminal Procedure did not permit Napout to use a motion for a bill of particulars to obtain information regarding witnesses and documents that the Government intended to present at trial. Id. The Court also determined that, as long as the Government complied with the Court's order to specify the allegedly tainted transactions, Napout would “have sufficient information to prepare a defense even without identification of the unnamed co-conspirators, ” because such co-conspirators, “according to the Government, were involved in conspiracies affecting the same transactions.” Id.
In response to the Court's decision, the Government filed a bill of particulars listing “particular tournaments, tournament editions, and related contracts” allegedly tainted by Napout's conduct and that of each of the other defendants before the Court at the time. (See Dkt. 550.) The Court found that this bill of particulars sufficiently complied with its order. See United States v. Napout (Napout I), No. 15-CR-252 (PKC), 2017 WL 11441519, at *2 (E.D.N.Y. Aug. 11, 2017); see also United States v. Napout (Napout II), No. 15-CR-252 (PKC), 2017 WL 4083571, at *8-9 (E.D.N.Y. Sept. 13, 2017) (). Thus, when Napout sought a second bill of particulars, the Court denied that request, emphasizing “the Government's compliance with” the Court's order on Napout's first bill-of-particulars motion and “the extensive discovery” already provided. Napout I, 2017 WL 11441519, at *2.
Following a six-week jury trial that included testimony from 28 government witnesses and introduction of voluminous documentary evidence, the jury returned guilty verdicts with respect to Napout and Marin.[4] (See Verdict Sheet as to Napout & Marin, Dkt. 873.) Both defendants appealed. (Notice of Appeal as to Napout, Dkt. 1017; Notice of Appeal as to Marin, Dkt. 1027.) In challenging their convictions, Napout and Marin principally argued that their convictions were based on impermissible extraterritorial applications of the wire-fraud-conspiracy statute and that the honest-services-fraud statute was unconstitutionally vague as applied to them. United States v. Napout (Napout III), 963 F.3d 163, 170 (2d Cir. 2020). Neither defendant raised any issues regarding the bill of particulars, or otherwise argued that they had been prejudiced by a lack of information necessary to preparing a defense. See generally Id. at 178-90.
The Second Circuit squarely rejected Napout and Marin's extraterritoriality argument with respect to the wire-fraud counts. Id. 178-81. Following its recent decision in Bascuñán v. Elsaca, 927 F.3d 108 (2d Cir. 2019), the Circuit held that the “focus” of the wire-fraud statute is “not merely a ‘scheme to defraud,' but more precisely, the use of the . . . wires in furtherance of a scheme to defraud.” Id. at 179 (alterations in original) (quoting Bascuñán, 927 F.3d at 122). The Circuit accordingly concluded that Napout's and Marin's convictions were not based on impermissible extraterritorial applications of the wire-fraud statute, given that the use of the wires alleged in the counts of conviction occurred in the United States and were essential, not merely incidental, to the schemes at issue. Id. at 180-81. The Circuit, moreover, rejected Napout and Marin's contention that the “focus” of honest-services wire fraud is the “bad-faith breach of a fiduciary duty owed to the scheme's victim, ” concluding that since honest-services wire fraud is a type of wire fraud, the “focus” for purposes of the extraterritoriality analysis was not affected just because Napout and Marin had been convicted of conspiracy to commit honest-services wire fraud as opposed to another type of wire fraud. Id. at 179-80.
The Second Circuit also rejected Napout and Marin's argument that the crime of honest-services fraud was unconstitutionally vague as applied to them, but because Napout and Marin had not raised the issue before this Court the Circuit reviewed that issue for plain error. Id. at 183- 84. Finding that it was unsettled whether the honest-services-fraud statute criminalizes a foreign employee's breach of a fiduciary duty owed to a foreign employer, the Circuit determined that there was no plain error. Id. Judge Hall concurred, but filed a separate opinion saying that, had the issue been properly presented, he would have concluded on de novo review that the honest-services-fraud statute was not unconstitutionally vague as applied. Id. at 190-92 (Hall, J., concurring). In Judge Hall's view, “when the government proves that a defendant-employee has concealed information that is material to the conduct of his employer's business, it has proven the defendant has breached a fiduciary duty...
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