United States v. DeMizio, No. 12-1293 (2d Cir. 2014)Annotate this Case
Defendant was convicted of conspiring to commit honest-services wire fraud and securities fraud, in violation of 18 U.S.C. 1343, 1346, 1348, and 1349, as well as making a false statement in violation of 18 U.S.C. 1001(a)(2). On appeal, defendant principally argued that the evidence presented at trial was insufficient to support his conviction of conspiracy to commit wire fraud in light of Skilling v. United States and that he was therefore entitled to a judgment of acquittal on the conspiracy count, or that he was entitled to a new trial on that count because the district court's instructions to the jury erroneously permitted conviction on an impermissible theory of honest-services fraud. The court concluded that the district court properly denied defendant's motion for judgment of acquittal where the evidence was sufficient to permit the jury to find that he conspired to commit honest-services wire fraud by means of having intermediary firms pay kickbacks to his father and brother in connection with Morgan Stanley's stock-loan transactions for which his father and brother performed little or no work. The district court's failure to anticipate the ruling in Skilling and instruct that the government was required to prove a scheme involving bribery or kickbacks was harmless beyond a reasonable doubt and did not affect the verdict. The court considered all of defendant's arguments on appeal and found them to be without merit. Accordingly, the court affirmed the judgment of the district court.