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Nimrod (Nimi) Aviad is a partner in Crowell & Moring’s Los Angeles office, where he is a member of the White Collar Crime and Regulatory Enforcement Group and of the firm's Investigations Group.

Nimi's practice focuses on representing and counseling corporate and individual clients in white collar criminal defense, regulatory enforcement actions, grand jury investigations, internal corporate investigations, and in related complex civil litigation matters.

On May 11, 2023, the Supreme Court issued two opinions limiting the reach of the federal fraud statutes and eliminating often-used theories from the government’s arsenal.

In Ciminelli v. US, 598 U. S. __ (2023), the Supreme Court decided that the “right to control” theory—long used by prosecutors in the Second Circuit—can no longer be used to support wire fraud convictions.  The Court overturned the conviction of Louis Ciminelli, a participant in a scheme to rig bids for New York state-funded projects, known as the “Buffalo Billion” initiative. As part of the scheme, requests for proposals were strategically drafted to give preferential treatment to Ciminelli’s company. At trial, the government argued that Ciminelli and his co-defendants were guilty of wire fraud under the right-to-control theory because they deprived the entity responsible for awarding the state-funded projects of certain information necessary to make an informed decision about the bid awards. The Second Circuit affirmed the conviction and the government’s use of the right-to-control theory.

Writing on behalf of a unanimous court, Justice Clarence Thomas held that the wire fraud statue only reaches traditional property interests and the right to valuable economic information needed to make discretionary economic decisions—known as the “right to control”—is not a traditional property interest. The right-to-control theory, therefore, “cannot form the basis for a conviction under the federal fraud statutes.” Continue Reading In Control: Supreme Court Reigns-In Second Circuit Fraud Theories

Can U.S. law enforcement reach data stored oversees by using a warrant under the Stored Communications Act, 18 U.S.C. § 2701, et seq.?  Until the Supreme Court decides the issue, which may happen next term, the answer is: it depends where the government applied for the warrant.

Over the last few years, U.S.-based technology companies have been increasingly resisting warrants under the Stored Communications Act for data those companies store oversees.  These warrants, they claim, represent an extraterritorial application of the law, which Congress has never permitted.

Traditionally, if the government has probable cause to believe that a person’s email account contains evidence of a crime, and a federal magistrate judge agrees, a warrant would issue directing the email service provider­ to turn over those emails to the government.  But data is increasingly stored in the “cloud.”  And, as it turns out, the “cloud” consists of server farms located all over the world.  Companies like Microsoft, Google, Amazon, Facebook, and Apple now host large quantities of data abroad, raising complicated jurisdictional questions.Continue Reading DOJ Asks Supreme Court to Resolve Split Over Its Ability to Compel Foreign Records