18-2811(L) USA v. Blaszczak 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2020 5 (Argued: June 9, 2021 Decided: December 27, 2022) 6 Docket Nos. 18-2811, 18-2825, 18-2867, 18-2878 7 _________________________________________________________ 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. - 11 DAVID BLASZCZAK, THEODORE HUBER, ROBERT OLAN, 12 CHRISTOPHER WORRALL, 13 Defendants-Appellants. 14 _________________________________________________________ 15 Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges. 16 Appeals, following vacatur and remand by the United States Supreme Court 17 for further consideration, in light of Kelly v. United States, 140 S. Ct. 1565 (2020), of this 18 Court's prior affirmance of judgments of the United States District Court for the Southern 19 District of New York convicting some or all of the defendants on substantive counts of 1 conversion of government property in violation of 18 U.S.C. § 641, wire fraud in violation 2 of 18 U.S.C. § 1343, and securities fraud in violation of 18 U.S.C. § 1348; and convicting 3 certain of the defendants on various counts of conspiring to engage in conduct violating one 4 or more of the above sections, all originating from misappropriation of confidential 5 information from the Centers for Medicare & Medicaid Services ("CMS"), see United States 6 v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated and remanded, 141 S. Ct. 1040, 2021 WL 78042, 7 2021 WL 78043 (Jan. 11, 2020). On this remand: (A) defendants contend that their argument 8 that the CMS information at issue does not constitute "property" or a "thing of value" within 9 the meaning of the above statutes is supported by the Supreme Court's decision in Kelly; 10 (B) the government, concurring in that contention, confesses error as to the substantive 11 counts and as to a count charging only conspiracy to violate §§ 1343 and 1348 (Count Two); 12 and it agrees that either the defendants' convictions on those counts should be reversed, or 13 the cases should be remanded to the district court so that the government can dismiss those 14 counts pursuant to Fed. R. Crim. P. 48(a); and (C) the government seeks affirmance on the 15 remaining conspiracy counts (Counts One and Seventeen). 16 Given the Supreme Court's decision in Kelly and the prosecutorial discretion 17 to which the Executive Branch of the government is entitled, we grant the government's 18 request to remand the cases to the district court for dismissal of the substantive counts and 19 Count Two. As to Counts One and Seventeen, the verdicts do not reveal whether the jury 2 1 found that the charged defendants conspired to commit offenses as to which the government 2 has confessed error or instead found that they conspired to engage in other charged criminal 3 conduct. Accordingly, we vacate the convictions on these two counts and remand for such 4 further proceedings as may be appropriate. 5 Remanded for dismissal of the substantive counts and Count Two; vacated and 6 remanded for further …
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