[co-author: Jonathan Gliboff]
On July 2, 2025, the U.S. Court of Appeals for the Second Circuit ruled in United States v. Lopez that foreign commercial bribery schemes fall within the ambit of the honest services wire fraud statute, 18 U.S.C. § 1346,1 notwithstanding the U.S. Supreme Court’s recent decisions in Ciminelli v. United States and Percoco v. United States.2 The Second Circuit panel’s unanimous decision reinstated the convictions of Hernán López, a former executive at Twenty-First Century Fox, and Full Play Group, S.A. (“Full Play”), a South American sports media and marketing company, in connection with the long-running FIFA corruption prosecution spearheaded by the U.S. Attorney’s Office for the Eastern District of New York.
The government alleged that López, Full Play, and others engaged in schemes to pay bribes to officials of regional soccer federations to secure broadcasting rights for those federations’ World Cup qualifiers and friendly matches. Specifically, the government alleged that Full Play engaged in multiple schemes to bribe officials of the South American soccer federation, CONMEBOL, and that Full Play encouraged the bribe recipients to move their bank accounts to overseas banks to conceal the payments.3 As to López, the government alleged that he “perpetuated, protected, and hid the bribes” by raising whistleblower allegations to his employer in order to initiate an audit that he was largely able to control and devising a contract that could minimize the paper trail of the bribes—all while using his relationships with the bribe recipients to benefit his own career.4
Prior to trial, the defendants unsuccessfully moved to dismiss the case, arguing inter alia that the prosecution presented an impermissible extraterritorial application of § 1346.5 In March 2023, following a seven-week jury trial, defendants López and Full Play were convicted of conspiracy to commit honest services wire fraud and money laundering conspiracy. In September 2023, the district court granted the defendants’ post-trial motions for acquittal, citing the Supreme Court’s decisions in Ciminelli and Percoco.6
Louis Ciminelli was an executive of a construction company who was convicted of conspiracy to commit wire fraud in connection with the “Buffalo Billion” project, an investment and redevelopment plan for the city of Buffalo.7 Ciminelli was prosecuted under a theory that he and his co-conspirators had deprived a nonprofit corporation of potentially valuable economic information and that the term “property” in 18 U.S.C. § 1343 “includes intangible interests such as the right to control the use of one’s assets.”8 The Supreme Court overturned the conviction, holding that federal wire fraud statutes only reach traditional property interests, and the right to valuable economic information was not a traditional property interest.9 Joseph Percoco was a high-ranking New York State official from 2011 to 2016 who was convicted of violating § 1346 in connection with the Buffalo Billion project during a period of eight months when he was on hiatus from government service to run Governor Andrew Cuomo’s reelection campaign.10 In Percoco, the Supreme Court held that while a private citizen with influence over government decision-making can be convicted under the honest services wire fraud statute, the jury instructions used at trial were too vague.11
The district court reasoned that Ciminelli and Percoco “signal[ed] limits on the scope of the honest services wire fraud statute” and that there was an absence of cases before McNally v. United States12 applying the honest services wire fraud statute to foreign commercial bribery cases. Accordingly, the district court vacated the convictions of López and Full Play.
On appeal, the Second Circuit held that Percoco did not control because it did not address commercial actors or employment relationships like those at issue in this case.13 Nor did Ciminelli, which the Second Circuit explained was a case about the scope of a different statute.14 The Second Circuit also rejected the district court’s view that § 1346 can only encompass conduct factually identical to conduct found in cases predating McNally, explaining that “such a methodology is unduly restrictive.”15
The Second Circuit rejected several other arguments raised by defendants. First, the Second Circuit disagreed with the defendants that their conduct was not covered by § 1346 because the fiduciary duty in question was a duty owed by FIFA and CONMEBOL officials—i.e., foreign employees’ duty to foreign employers. Applying United States v. Bahel, 662 F.3d 610 (2d Cir. 2011), which upheld the honest services fraud conviction of a foreign United Nations employee who accepted bribes from a foreign vendor, the Second Circuit held “that the foreign identity of the officials and their employers does not remove the schemes from § 1346’s reach.”16 The Second Circuit further explained that the applicability of § 1346 was especially clear when the relevant conduct occurred within the United States and was for the benefit of United States-based individuals and organizations.17 The panel was also unconvinced under its own precedent that “a violation of local law is [] required to establish a breach of a fiduciary duty.”18
Next, the Second Circuit rejected the defendants’ statutory argument that the limited scope of other bribery statutes indicates that § 1346 does not cover foreign commercial bribery. Specifically, the defendants pointed both to the limited scope of domestic bribery statutes, 18 U.S.C. §§ 201 and 666, and to “Congress’s ‘surgical precision’ when extending other foreign statutes to commercial bribery” (discussing the scope of the Foreign Corrupt Practices Act and Foreign Extortion Prevention Act) to argue that § 1346 would not itself cover foreign commercial bribery.19 The Second Circuit, however, was unconvinced, reasoning that “the wire fraud statute is not a bribery statute,” and noting that it had held in a prior decision that “the wire fraud ‘statute reaches any scheme to defraud involving money or property, [regardless of] whether the scheme . . . involves foreign victims and governments.’”20
Finally, the Second Circuit disagreed with defendants’ argument that “principles of international comity counsel against interpreting vague statutes to cover internal domestic affairs of foreign nations.”21 The Second Circuit explained that there are already sufficient limitations on the international application of the wire and mail fraud statutes, as statutes “are presumed to have only domestic application,” and that in order to “haul essentially foreign allegedly fraudulent behavior into American courts, the use of the . . . wires must be essential, rather than merely incidental, to the scheme to defraud.”22
Ultimately, the Second Circuit held that the schemes perpetuated by Full Play and López fall under § 1346, that Percoco and Ciminelli were distinguishable, and that the district court erred in vacating the defendants’ convictions based on the reasoning of those decisions. In doing so, the Second Circuit explained that this decision does not “purport to establish a bright line rule for what qualifies as honest services wire fraud under § 1346, nor [does it] speculate as to where the outer bounds of the statute may lie.”23 The Second Circuit only found that, under its own binding precedents, the defendants’ conduct fit within the purview of § 1346.
While the Second Circuit remanded the case to the district court for further consideration of separate grounds of the defendants’ Rule 29 motion for acquittal,24 counsel for López have indicated that they intend to appeal the Second Circuit’s decision to the Supreme Court. If the Supreme Court grants certiorari, this case will present another opportunity for the Court to consider narrowing the scope of the federal anti-fraud statutes. While the Second Circuit’s decision provides the Department of Justice with a tool for more expansive use of these statutes in international fraud and corruption cases (including cases involving purely commercial bribery), it remains to be seen whether the Department will choose to do so in light of its recent announcement of its criminal enforcement priorities.
WilmerHale’s White Collar Defense and Investigations Practice will continue to monitor this case closely for its impact on pending and future cases.
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