United States v. Full Play Grp.

• Docket Number: 15-CR-252 (S-3) (PKC)
• Decision Date: 01 September 2023
• Parties: UNITED STATES OF AMERICA, v. FULL PLAY GROUP, S.A. and HERNAN LOPEZ, Defendants.
• Court: U.S. District Court — Eastern District of New York

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UNITED STATES OF AMERICA, v. FULL PLAY GROUP, S.A. and HERNAN LOPEZ, Defendants.

No. 15-CR-252 (S-3) (PKC)

United States District Court, E.D. New York

September 1, 2023

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Defendants Full Play Group, S.A. (“Full Play”), an Argentine sports marketing company, and Hernan Lopez (“Lopez”), the former Chief Executive Officer (“CEO”) of Fox International Channels (“FIC”), are among dozens of individuals and entities charged in an almost decade-long prosecution targeting corruption in international soccer. The wide-ranging prosecution has resulted in the convictions of dozens of former officials of the Federation Internationale de Football Association (“FIFA”) and affiliated continental and regional soccer confederations, such as la Confederation Sudamericana de Futbol (“CONMEBOL”) and the Confederation of North, Central America and Caribbean Association Football (“CONCACAF”), as well as executives and employees of certain sports broadcasting and media rights companies, along with the companies themselves.

Here Defendants Full Play and Lopez (collectively “Defendants”) were charged with being participants in an intricate scheme to pay bribes and kickbacks to CONMEBOL officials for the purpose of obtaining the broadcasting and marketing rights for popular regional soccer tournaments. Specifically, Full Play was charged with several wire-fraud and money-laundering schemes related to the Copa Libertadores and Copa America soccer tournaments and various “friendly” matches (“friendlies”) and World Cup qualifiers amongst South American national teams; and Lopez was charged as a co-conspirator in the wire-fraud and money-laundering counts related to the Copa Libertadores scheme. On March 9, 2023, a jury found Full Play and Lopez guilty on all counts charged against them after a seven-week trial.^[1]

Defendants Full Play and Lopez now move under Federal Rule of Criminal Procedure 29 (“Rule 29”) for judgments of acquittal. Although before trial the Court rejected some of the same legal arguments Defendants now renew in their post-trial motions, because of intervening Supreme Court decisions signaling limits on the scope of the honest services wire fraud statute, the Court grants Defendants' motions and vacates their convictions.

BACKGROUND

I. Initial Indictments and 2017 Trial

This case began in May 2015 with the indictment of nine FIFA officials and five sports media executives for their alleged participation in bribery schemes related to international soccer tournaments. (See generally Sealed Indictment, Dkt. 1.) Six months later, in November 2015, the grand jury returned a superseding indictment charging additional defendants. (See generally Sealed Indictment, Dkt. 102.) In the few years that followed, many of the charged defendants chose to cooperate with the Government and/or plead guilty. United States v. Napout, 963 F.3d 163, 170 (2d Cir. 2020). In June 2017, in anticipation of trial, the Government obtained a second superseding indictment pertaining only to defendants Juan Angel Napout, Manuel Burga, and Jose Maria Marin. (See generally Superseding Indictment (S-2), Dkt. 604; Government Letter re S-2 Indictment, Dkt. 603).)

On November 6, 2017, Napout, Burga, and Marin proceeded to a jury trial before this Court. (See 11/6/2017 Minute Entry.) After six weeks of trial, Napout was convicted of the racketeering conspiracy and wire fraud conspiracy counts, but acquitted on the money laundering conspiracy counts; and Marin was convicted on all counts, except for one money laundering conspiracy count. (See 12/22/2017 Minute Entry; Verdict Sheet, Dkt. 873.) Burga was acquitted on all counts against him. (See Dkts. 871, 874.) Napout and Marin challenged their convictions, principally arguing that they were convicted based on impermissible extraterritorial applications of the wire fraud statutes. See generally United States v. Napout, 332 F.Supp.3d 533 (E.D.N.Y. 2018); Napout, 963 F.3d 163. This Court denied their post-trial motions for acquittal and new trials, Napout, 332 F.Supp.3d at 575, and the Second Circuit affirmed, Napout, 963 F.3d at 190.

II. Third Superseding Indictment

On March 18, 2020, the grand jury returned a third superseding indictment, adding charges against Defendants Full Play, Lopez, and Martinez. (Sealed Superseding Indictment (S-3) (“S-3 Indictment” or “the Indictment”), Dkt. 1337.) Like the previous indictments, the S-3 Indictment alleged a wide-ranging racketeering conspiracy, spanning “a period of more than 20 years,” that involved various schemes to solicit, pay, and receive bribes and kickbacks “in connection with the sale of media and marketing rights to various soccer tournaments and events” around the world. (S-3 Indictment, Dkt. 1337, ¶ 63.) Full Play, a South American sports media and marketing company, was charged in the overarching Racketeer Influenced and Corrupt Organizations (“RICO”) conspiracy and several of the wire-fraud and money-laundering schemes underlying the RICO conspiracy, including ones connected with the Copa Libertadores (“Copa Libertadores #2 Scheme”), the Copa America (“Copa America Scheme”), and various friendly and World Cup qualifier matches (“World Cup Qualifiers/Friendlies Scheme”). (Id. ¶¶ 19-20, 113-15, 129-35, 146-56.) Lopez and Martinez, both United States citizens who were executives at FIC, a subsidiary of Twenty-First Century Fox, Inc. (“Fox”), were charged as co-conspirators with Full

Play in the counts related to the Copa Libertadores #2 Scheme-but not in any of the other counts in the S-3 Indictment, including the RICO count. (See id. ¶¶ 21-22, 129-35.)

Prior to Defendants' trial, the Government decided not to proceed to trial on the RICO count as to Full Play (Dkt. 1756) and the substantive wire fraud counts as to Full Play, Lopez, and Martinez (Dkt. 1864). Consequently, only Defendants' conspiracy counts for honest services wire fraud and money laundering remained. (See generally Dkt. 1868 (Government's proposed trial indictment “edited to omit counts from the [Third Superseding] Indictment that are irrelevant to the trial ....”).)

A. Copa Libertadores #2 Scheme

With respect to the Copa Libertadores #2 Scheme, the wire fraud conspiracy charge in the S-3 Indictment alleged:^[2]

In or about and between 2000 and 2015, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants FULL PLAY, HERNAN LOPEZ, and CARLOS MARTINEZ, together with others, did knowingly and intentionally conspire to devise a scheme and artifice to defraud FIFA and CONMEBOL and their constituent organizations, including to deprive FIFA and CONMEBOL and their constituent organizations of their respective rights to honest and faithful services through bribes and kickbacks, and to obtain money and property by means of materially false and fraudulent pretenses, representations and promises, and for the purpose of executing such scheme and artifice, to transmit and cause to be transmitted by means of wire communication in interstate and foreign commerce, writings, signs, signals, pictures and sounds, to wit: wire transfers, telephone calls and emails, contrary to Title 18, United States Code, Section 1343.

(Title 18, United States Code, Sections 1349 and 3551 et seq.)

(Tr. Indictment, Dkt. 1868-1, ¶ 34.)^[3] The Indictment detailed 11 fraudulent wire transfers between March 20, 2015 and May 26, 2015 that Full Play, Lopez, Martinez, and their co-conspirators “did transmit and cause to be transmitted” in furtherance of the alleged scheme. (Dkt. 1337, ¶ 133.)

B. Copa America Scheme

As to the Copa America Scheme, the S-3 Indictment alleged that between 2010 and 2015, Full Play and others agreed to pay tens of millions of dollars in bribes to CONMEBOL officials to secure the media and marketing rights to the 2015, 2019, and 2023 editions of the Copa America, as well as the Copa America Centenario held in 2016 in the United States. (See id. ¶¶ 81-85, 15054.) The S-3 Indictment specified six fraudulent wire transfers between April 27, 2015 and May 26, 2015 that Full Play and its co-conspirators “did transmit and cause to be transmitted” in furtherance of the alleged scheme. (Id. ¶ 154.)

C. World Cup Qualifiers/Friendlies Scheme

Lastly, the S-3 Indictment alleged that between 2007 and 2015, Full Play and its owners, Hugo and Mariano Jinkis, engaged in a scheme to pay bribes and kickbacks to the presidents of various soccer federations within CONMEBOL in exchange for media rights to certain World Cup qualifying matches and certain friendly matches. (Id. ¶ 79.)

III. Pre-Trial Rulings

On July 23, 2021, Defendants Full Play, Lopez, and Martinez filed motions to dismiss the S-3 Indictment under Federal Rule of Criminal Procedure 12(b)(3). (Dkts. 1594, 1595.) Defendants moved for dismissal on three grounds: (1) the honest services wire fraud charges were unconstitutionally vague as applied to Defendants; (2) the Indictment impermissibly sought to apply the wire-fraud statute extraterritorially; and (3) the Indictment did not sufficiently allege an offense. United States v. Full Play Grp., S.A., No. 15-CR-252 (PKC), 2021 WL 5038765, at *4 (E.D.N.Y. Oct. 29, 2021) (citing Dkts. 1594-1, 1595-1). The Court's previous ruling regarding Defendants' first argument, the vagueness challenge, is relevant to this Memorandum and Order and is summarized below.^[4]

By written decision issued on October 29, 2021, the Court denied Defendants' motions in their entirety. (Id.) At the time, the Court “ha[d] no trouble rejecting Defendants' [] vagueness arguments” because “although jurists may continue to debate the source and scope of the fiduciary duties encompassed by § 1346, at least...