United States v. Napout

• Decision Date: 22 June 2020
• Docket Number: 18-2820,August Term, 2019,18-2820 (Con),Nos. 18-2750 (L),s. 18-2750 (L)
• Citation: 963 F.3d 163
• Parties: UNITED STATES of America, Appellee, v. Juan Ángel NAPOUT, José Maria Marin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

963 F.3d 163

UNITED STATES of America, Appellee,

v.Juan Ángel NAPOUT, José Maria Marin, Defendants-Appellants.¹

Nos. 18-2750 (L)

18-2820 (Con)

August Term, 2019

18-2820

United States Court of Appeals, Second Circuit.

Argued: November 7, 2019

Decided: June 22, 2020

INTRODUCTION

Defendants-appellants Juan Ángel Napout and José Maria Marin, former officials of the global soccer organization Fédération Internationale de Football Association, or "FIFA" (pronounced fee -fa), were each convicted of, inter alia , multiple counts of conspiracy to commit honest services wire fraud after a trial in the United States District Court for the Eastern District of New York (Pamela K. Chen, Judge ). On appeal from the judgments of conviction, Napout and Marin argue principally that their convictions rest upon impermissible extraterritorial applications of the honest services wire fraud statute, 18 U.S.C. § 1346. They argue also that § 1346 is unconstitutionally vague as applied to them.

Because appellants Marin and Napout appeal their convictions following a jury trial, we recount the facts viewing the evidence adduced in the district court in " ‘the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor.’ " United States v. Rosemond , 841 F.3d 95, 99–100 (2d Cir. 2016) (quotation and citation omitted). But we note that in the introduction to his brief on this appeal, appellant Napout² declares:

This case raises one overarching question: by what authority does the United States purport to police the relationship between a Paraguayan employee and his Paraguayan employer, and an alleged scheme involving South Americans that took place almost entirely in South America. The answer: there is no such authority.

Napout Br. at 1. Thus Napout makes clear the central theme of the appellants' argument on appeal: Even if they did as the government alleged, and the jury so found, as a matter of American statutory and constitutional law, they were not guilty of the crimes for which they were charged.

* * *

Most Americans (and some others) refer to what we understand to be "association football" as "soccer." In most of the rest of the world, of course, it is called simply "football" (spelled "fútbol" in Spanish).³ By any name, it is the world's most popular sport.⁴ Known in some quarters as the "Beautiful Game,"⁵ much of the activity surrounding organized soccer, including in particular efforts to profit from the game's largest tournaments, has created widespread opportunities for corruption. The major, largely successful criminal prosecutions that included those in the case here on appeal reflect the fact that those opportunities are sometimes taken advantage of by people associated with the sport.

These allegations of corruption have been associated with the operation of soccer's Zurich, Switzerland-based international governing body, FIFA, and some of its regional affiliates in North, Central, and South America, particularly la Confederación Sudamericana de Fútbol ("CONMEBOL"), and the Confederation of North, Central America and Caribbean Association Football ("CONCACAF"). Specifically at issue in this case are the bribes and kickbacks paid in connection with the process by which FIFA and its regional associates sell broadcasting and marketing rights to their more popular tournaments. Beginning at least as early as the 1980s, FIFA officials, including leaders of CONMEBOL, CONCACAF, and other such continental and national associations, accepted many millions of dollars in bribes from sports media and marketing companies in return for their granting those companies broadcasting and marketing rights to tournaments under the leaders' control.

In May 2015, after nearly five years of investigation by, inter alia , the United States Internal Revenue Service (the "IRS"), the United States Federal Bureau of Investigation (the "FBI"), and the United States Attorneys' Office for the Eastern District of New York, the latter secured indictments against nine FIFA officials and five executives from sports marketing and media companies, for, among other things, racketeering conspiracy, wire fraud and wire fraud conspiracy, and money laundering and money laundering conspiracy, arising out of alleged bribery schemes connected to FIFA's tournaments. United States v. Webb et al. , No. 15-cr-00252 (E.D.N.Y. May 20, 2015), ECF No. 1, App. at 42.⁶ Some six months later, in November 2015, the government filed a superseding indictment charging all but three of the original defendants, along with sixteen additional FIFA officials, with similar crimes arising out of the same schemes. United States v. Webb et al. , No. 15-cr-00252 (E.D.N.Y. Nov. 20, 2015), ECF No. 102, App. at 48–49.⁷

In June 2017, after most of the charged defendants had pleaded guilty, some of them having cooperated with prosecutors and investigators, the government filed a second superseding indictment including as named defendants just three officials of South American regional and national organizations: Manuel Burga, the former president of Peru's national soccer federation; Juan Ángel Napout, the former president of Paraguay's national soccer federation; and José Maria Marin, a former head of the Brazilian national soccer federation. The second superseding indictment alleged one count of racketeering conspiracy against Burga; one count of racketeering conspiracy, two counts of wire fraud conspiracy, and two counts of money laundering conspiracy against Napout; and one count of racketeering conspiracy, three counts of wire fraud conspiracy, and three counts of money laundering conspiracy against Marin.

Burga, Napout, and Marin all proceeded to trial in the district court beginning on November 6, 2017. On December 22, 2017, after six weeks of trial and five days of jury deliberations, the jury returned its verdicts. Burga was acquitted of the one count against him; 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 but one, a money laundering conspiracy count on which he was acquitted.

On August 22, 2018, the district court sentenced Marin to 48 months' imprisonment and two years' supervised release. A week later, the court sentenced Napout to 108 months' imprisonment and two years' supervised release.

On appeal, Marin and Napout challenge their convictions for honest services wire fraud conspiracy on two principal grounds. First, they contend that the honest services wire fraud statute criminalizes only fraudulent conduct that occurs on U.S. — not foreign — soil and therefore cannot support convictions based on conduct, such as theirs, that occurred overseas. Second, they argue that it is unclear whether the honest services wire fraud statute criminalizes a breach of the fiduciary duty that a foreign employee owes to his foreign employer, and therefore that the lack of clarity leaves the statute unconstitutionally vague as applied to them.

For the reasons set forth below, we conclude that these and the appellants' other arguments on appeal are without merit. We therefore affirm the judgments of the district court.

BACKGROUND

I. World Soccer/Football: General Background

The Fédération Internationale de Football Association (popularly known and hereinafter referred to as "FIFA") is a Zurich, Switzerland-based entity responsible for governing the sport of what Americans call "soccer." Test. of Stephanie Maennl, Trial Tr. at 106. Two hundred eleven associations world-wide, each governing some part of the game in a particular region, country, or territory, are members of FIFA. Id.

FIFA's member associations are grouped into six continental confederations covering, inter alia , all continents except (of course) Antarctica. Id. at 110. "The Confederation of North, Central American and Caribbean Association Football," or "CONCACAF," referred to above, consists of 35 national associations; the South American confederation, also referred to above, including an association from every country on that continent save for Suriname and Guyana, is known as "la Confederación Sudamericana de Fútbol," or "CONMEBOL." Id. at 110–13.

FIFA and its members are governed by sets of rules called codes of ethics. Id. at 138. As relevant here, FIFA's lengthy and detailed code of ethics provides that the organization's officials "have a fiduciary duty to FIFA, the [continental] confederations, [and the national] associations." FIFA Code of Ethics (2012 ed.), Art. 15. In a section entitled "[b]ribery and corruption," the code provides that FIFA officials "must not offer, promise, give or accept any personal or undue pecuniary or other advantage ... for the execution or omission of an act that is related to their official activities and is contrary to their duties or falls within their discretion." Id. , Art. 21.

CONMEBOL's code of ethics is modeled on FIFA's and also requires the confederation's officials to act with "absolute loyalty, particularly to CONMEBOL [and] FIFA[.]" CONMEBOL Code of Ethics (2013 ed.), Art. 15. The code also provides that CONMEBOL officials "may not offer or promise or give or accept any improper personal or economic benefit or any other type of benefit, in order to obtain or maintain a transaction or any other dishonest benefit with respect to any CONMEBOL person or person outside CONMEBOL." Id. , Art. 21.

One of FIFA and the confederations' principal functions is to promote soccer by organizing international competitions. The most prominent is the World Cup, a quadrennial tournament among the leading national teams of the six continental confederations. Since its inception in 1930, with the World War II exceptions of 1942 and 1946, it has taken place in various locations around the globe.⁸

CONMEBOL also holds tournaments the first of which preceded the first World Cup. Since 1916,⁹ the confederation has organized the Copa América, a...