United States v. Lopez

23-7183-cr (L)
United States v. Lopez
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2024
A RGUED: JANUARY 8, 2025
D ECIDED: JULY 2, 2025
Nos. 23-7183-cr (L); 23-7186-cr (CON)
U NITED S TATES OF AMERICA,
Appellant,
v.
H ERNÁN LOPEZ , F ULL PLAY G ROUP , S.A.,
Defendants-Appellees.*
________
Appeal from the United States District Court
for the Eastern District of New York.
________
Before: WALKER , R OBINSON, and MERRIAM , Circuit Judges.
________
Following a lengthy trial, Defendants-Appellees Hernán
Lopez, a top executive at Twenty-First Century Fox, and Full Play
Group, S.A., a South American sports marketing company, were each
convicted of conspiracy to commit honest services wire fraud in
* The Clerk of Court is respectfully directed to amend the caption as set
forth above.

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connection with their involvement in a notorious FIFA corruption
scandal. Each Defendant then moved under Rule 29(c) of the Federal
Rules of Criminal Procedure for a judgment of acquittal, principally
arguing that, as a matter of statutory construction, honest services
wire fraud under 18 U.S.C. § 1346 did not criminalize their conduct.
Although the district court (Chen, J.) had previously denied
pre-trial motions to dismiss the indictment that raised similar
arguments, it granted Defendants’ post-trial motions. The district
court reasoned that, following the Supreme Court’s decisions in
Percoco v. United States, 598 U.S. 319 (2023), and Ciminelli v. United
States, 598 U.S. 306 (2023), honest services fraud did not encompass
Defendants’ conduct and therefore the evidence adduced at trial was
insufficient to sustain Defendants’ convictions.
For the reasons that follow, we hold that the district court erred
in concluding that Defendants’ conduct did not fall within the ambit
of § 1346. We therefore VACATE the judgments of the district court
and REMAND for further proceedings consistent with this opinion.
________
K AITLIN T. F ARRELL (Amy Busa, David C. James,
Robert T. Polemeni, Victor Zapana, Eric
Silverberg, Lorena Michelen, on the brief), Assistant
United States Attorneys, for Joseph Nocella, Jr.,
United States Attorney for the Eastern District of
New York, NY, for Appellant United States of
America.
ALEXANDRA A.E. SHAPIRO , Shapiro Arato Bach
LLP, New York, NY (Daniel J. O’Neill, Theodore

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Sampsell-Jones, Shapiro Arato Bach LLP, New
York, NY; John Gleeson, David Sarratt, Joshua N.
Cohen, Debevoise & Plimpton LLP, New York,
NY, on the brief), for Defendant-Appellee Hernán
Lopez.
MICHAEL MARTINEZ , Gibson, Dunn & Crutcher
LLP, New York, NY (Roy T. Englert, Jr., Chloe C.
Bootstaylor, Kramer Levin Naftalis & Frankel LLP,
Washington, DC; Matthew M. Madden, Hogan
Lovells US LLP, Washington, DC; Mayling C.
Blanco, Katey L. Fardelmann, Norton Rose
Fulbright US LLP, New York, NY; Carlos Ortiz,
Kayley B. Sullivan, Baker Hostetler, New York,
NY; William Devaney, Baker McKenzie, New
York, NY, on the brief), for Defendant-Appellee Full
Play Group, S.A.
Casey E. Donnelly, Michael S. Schachter, Willkie
Farr & Gallagher LLP, New York, NY, for amicus
curiae New York Council of Defense Lawyers.
________
JOHN M. WALKER , JR ., Circuit Judge:
Following a lengthy trial, Defendants-Appellees Hernán
Lopez, a top executive at Twenty-First Century Fox, and Full Play
Group, S.A., a South American sports marketing company, were each
convicted of conspiracy to commit honest services wire fraud in
connection with their involvement in a notorious FIFA corruption
scandal. Each Defendant then moved under Rule 29(c) of the Federal
Rules of Criminal Procedure for a judgment of acquittal, principally

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arguing that, as a matter of statutory construction, honest services
wire fraud under 18 U.S.C. § 1346 did not criminalize their conduct.
Although the district court (Chen, J.) had previously denied
pre-trial motions to dismiss the indictment that raised similar
arguments, it granted Defendants’ post-trial motions. The district
court reasoned that, following the Supreme Court’s decisions in
Percoco v. United States, 598 U.S. 319 (2023), and Ciminelli v. United
States, 598 U.S. 306 (2023), honest services fraud did not encompass
Defendants’ conduct and therefore the evidence adduced at trial was
insufficient to sustain Defendants’ convictions.
For the reasons that follow, we hold that the district court erred
in concluding that Defendants’ conduct did not fall within the ambit
of § 1346. We therefore VACATE the judgments of the district court
and REMAND for further proceedings consistent with this opinion.
BACKGROUND
I. Factual Background
A. Relevant People and Organizations
Defendant Lopez, an American citizen and resident, held, until
2016, top executive positions at Twenty-First Century Fox (“Fox”), an
American media conglomerate. He ran Fox’s Latin American division
until he was promoted to run Fox’s entire international division.
Defendant Full Play is a private sports marketing company
incorporated in Uruguay with its principal office in Argentina.
The Fédération Internationale de Football Association (“FIFA”)
is the international body governing organized soccer. FIFA is a
nonprofit entity organized under Swiss law and headquartered in

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Zurich, Switzerland. It comprises over 200 member associations, each
representing organized soccer in a particular nation or territory,
including the United States. To become a member of FIFA, an
association must first join one of six continental confederations, which
include the Confederación Sudamericana de Fútbol (“CONMEBOL”)
(the South American confederation), headquartered in Paraguay, and
the Confederation of North, Central American, and Caribbean
Association Football (“CONCACAF”), headquartered in the United
States.
As a condition of membership in FIFA, member associations
agree to be bound by FIFA’s statutes and code of ethics. FIFA’s
written code of ethics was introduced in 2004 and prohibits officials
(defined to include executives of FIFA, its continental confederations,
and member associations) from accepting bribes or otherwise abusing
their positions of power for personal gain. The code also imposes on
officials a duty of “absolute loyalty” to FIFA. Gov. App’x 114. Many
confederations, including CONMEBOL, have also adopted their own
ethics codes that prohibit officials from using their positions to obtain
personal benefits and require “absolute loyalty” to CONMEBOL,
FIFA, and the associations. Id. at 567. CONMEBOL’s code of ethics
was adopted in 2013.
Both FIFA and the continental confederations host and own the
broadcast and media rights to popular international soccer
tournaments. For example, FIFA hosts the World Cup tournament,
the most watched sporting event in the world,1 in which teams from
1 According to FIFA, the 2022 Men’s World Cup final reached an average
live audience of 571 million viewers across the globe. Felix Richter, Super Bowl
Pales in Comparison to the Biggest Game in Soccer, S TATISTA (Feb. 6, 2025),
https://www.statista.com/chart/16875/super-bowl-viewership-vs-world-cup-

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all six confederations compete every four years for the title of world
champion. CONMEBOL hosts the Copa América tournament,
another popular quadrennial event with teams from each of
CONMEBOL’s ten South American countries plus invited teams from
outside the region. CONMEBOL also hosts the Copa Libertadores, an
annual tournament involving the region’s club teams. Additionally,
the six confederations each organize World Cup qualifier matches
(where teams compete to qualify for the World Cup), and individual
national associations organize matches between national or club
teams, referred to as “friendlies.” Gov. App’x 463.
FIFA, CONCACAF, CONMEBOL, and the individual member
associations typically contract with sports marketing companies, such
as Full Play, to transfer the highly lucrative rights to their soccer
events. Those companies then sell the rights to television and radio
networks, which broadcast games, as well as to sponsors and
licensees.
B. The Schemes
Corruption in international soccer is not new. It was rampant
for decades before the events at issue here. This case concerns Lopez’s
and Full Play’s participation in bribery schemes for the media rights
final/#:~:text=Speaking%20of%20football%2C%20soccer%2C%20i.e.,international
%20audience%20of%2062.5%20million [https://perma.cc/G9FS-CYWP]. This
popularity is not unique to men’s soccer. Women’s soccer is also very popular
around the world, with the most recent Women’s World Cup final, held in 2023,
drawing a global live audience of 67.6 million viewers and reaching over 222
million people across various platforms. See FIFA Women’s World Cup Australia &
New Zealand 2023: Global engagement and audience detailed report, FIFA,
https://digitalhub.fifa.com/m/efa90ed1ddbe3bf/original/FIFA-Women-s-World-
Cup-Australia-New-Zealand-2023-Global-Engagement-Audience-Detailed-
Report.pdf at 18, 19 (last visited June 12, 2025) [https://perma.cc/N5PH-4A9L].

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to the Copa América and the Copa Libertadores tournaments, as well
as World Cup qualifiers and friendlies.
The government adduced evidence that, between 2009 and
2015, Full Play bribed the federation presidents of Paraguay, Bolivia,
Colombia, Venezuela, Peru, and Ecuador (known as the “Group of
Six”) in exchange for the media rights to their federations’ respective
World Cup qualifiers and friendly matches, some of which were
played in the United States. Full Play used United States dollars and
bank accounts to fund these bribes.
Between 2010 and 2015, Full Play also bribed the Group of Six
and CONMEBOL officials in connection with the Copa América
tournament.2 And, between 2000 and 2015, Full Play helped another
media company, T&T Sports Marketing, Ltd. (“T&T”),3 transmit
millions of dollars in bribes to the Group of Six in connection with
Copa Libertadores media rights, so that Full Play could further
solidify its relationships with the officials. Many of these payments
were wired through United States bank accounts.
To conceal these bribes from authorities, Full Play used code
names on ledgers and encouraged bribe recipients to move their bank
accounts from American banks to overseas banks. Evidence also
2 The government submitted evidence that Full Play had also promised a
$10 million bribe to the head of CONCACAF in connection with the Copa América
Centenario—a 2016 soccer tournament organized by CONMEBOL and
CONCACAF among South American, Central American, and North American
national teams, hosted in the United States—but Full Play’s owners were indicted
before the tournament took place and before any payments were made.
3 T&T was a joint venture of Fox and Torneos y Competencias, an
Argentinian sports media company. The government alleged that T&T was used
“as a pass-through vehicle” to purchase Copa Libertadores media rights from
CONMEBOL, after which the rights were sold to Fox at cost. Gov. App’x at 166.

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showed that Full Play’s owners met in the United States to discuss
how to make their illegal payments appear legitimate.
As for Lopez, the government alleged that he was involved
only in the Copa Libertadores scheme. It submitted that he had
studied T&T’s Copa Libertadores media rights contracts and
understood that T&T was likely paying bribes to secure those
contracts, which he identified as being undervalued and containing
unusually long terms. In 2011, after Lopez confirmed with the head
of Torneos y Competencias, Alejandro Burzaco, that T&T was indeed
using bribery to obtain media rights, Lopez’s division of Fox acquired
75% of the economic rights to T&T. Lopez intervened in the due
diligence process for the acquisition to ensure that auditors’ red flags
did not stymie the deal.
For the next three years, Lopez “perpetuated, protected, and
hid the bribes,” which were funded by Fox. Gov. Br. at 24.
Throughout this time, Lopez held meetings in the United States with
coconspirators to effectuate the scheme. The government’s evidence
also demonstrated how Lopez exploited his relationship with bribed
executives to benefit his own career. In late 2011, for example, Lopez
obtained from a top FIFA executive inside information to help Fox
outbid a competitor for the broadcasting rights to the 2018 and 2022
World Cups.
In 2014, Lopez attempted to cover up the bribes by bringing
whistleblower allegations to Fox, resulting in an audit that he was, in
large part, able to control. Later, with Carlos Martinez (a subordinate
to Lopez) and Burzaco, he devised a contract to minimize the paper
trail of bribes traceable to Fox while maintaining payments to soccer

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executives, but the government’s first indictment was unsealed before
the contract was finalized.
II. Procedural Background
A. Initial Indictment and 2017 Trial
In May 2015, the government indicted numerous FIFA,
CONMEBOL, and CONCACAF officials, as well as sports marketing
executives, for their alleged participation in bribery schemes. Many
defendants pleaded guilty.
In November 2017, trial proceeded against three defendants,
Juan Ángel Napout (former CONMEBOL president and Paraguayan
soccer executive), José Maria Marin (former president of the Brazilian
national association), and Manuel Burga (Peruvian soccer executive);
Napout and Marin were convicted, and we affirmed the convictions
on appeal. See United States v. Napout, 963 F.3d 163, 168, 190 (2d Cir.
2020).
On March 18, 2020, the grand jury returned a third superseding
indictment, adding charges against Full Play, Lopez, and Martinez.
The indictment charged Lopez and Full Play with, inter alia, wire
fraud conspiracy and substantive wire fraud arising out of the Copa
Libertadores scheme. The indictment also charged Full Play with
additional counts of wire fraud conspiracy and wire fraud arising out
of the bribery schemes to obtain media rights to the World Cup
qualifiers, friendly matches, and Copa América.
B. Motions to Dismiss the Indictment
Before trial, Full Play and Lopez each moved to dismiss the
indictment on several grounds, including that the honest services

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wire fraud charges were unconstitutionally vague as applied to them.
See United States v. Full Play Grp., S.A., No. 15-CR-252, 2021 WL
5038765, at *4 (E.D.N.Y. Oct. 29, 2021). The district court denied the
motions. Id. at *1, *15.
The district court had “no trouble rejecting Defendants’ . . .
vagueness arguments” in view of Skilling v. United States, 561 U.S. 358
(2010), “as well as Second Circuit precedent both before and after
Skilling.” Full Play Grp., 2021 WL 5038765, at *6. It reasoned that the
schemes at issue—i.e., bribery schemes—were, under Skilling,
undoubtedly covered by the honest services fraud statute, 18 U.S.C.
§ 1346. Id. The district court further rejected Defendants’ argument
that the alleged breaches of fiduciary duty were not cognizable under
§ 1346. Id. at *7 (“As a general principle, ‘[t]he “existence of a
fiduciary relationship” between an employee and employer is
“beyond dispute,” and the violation of that duty through the
employee’s participation in a bribery or kickback scheme is within the
core of actions criminalized by § 1346.’” (quoting United States v.
Nouri, 711 F.3d 129, 137 n.1 (2d Cir. 2013))). Lastly, the district court
rejected Defendants’ argument that § 1346 was not intended to reach
foreign bribery schemes. Id. In so doing, it relied on United States v.
Bahel, 662 F.3d 610 (2d Cir. 2011), which upheld the honest services
fraud conviction of a foreign employee of the United Nations who
had accepted bribes from a foreign vendor. Id.
C. 2023 Trial
Trial commenced in January 2023. After the government rested
its case, Defendants orally moved for acquittal under Federal Rule of
Criminal Procedure 29(a), and the district court reserved decision.

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On March 9, 2023, a jury found Full Play and Lopez guilty on
all counts tried against them, including conspiracy to commit honest
services wire fraud.4
D. Post-Trial Rule 29 Motions
After trial, Lopez and Full Play renewed their motions for
acquittal pursuant to Federal Rule of Criminal Procedure 29(c),
arguing that the evidence presented at trial was insufficient to sustain
their convictions. This time, the district court granted their motions.
United States v. Full Play Grp., S.A., 690 F. Supp. 3d 5, 8 (E.D.N.Y. 2023);
see also Special App’x 1–55.
The district court concluded that Ҥ 1346 does not criminalize
the conduct alleged in this case and that therefore the evidence at trial
was insufficient to sustain Defendants’ convictions under that
statute.” Full Play Grp., 690 F. Supp. 3d at 25. It observed that Ciminelli
v. United States, 598 U.S. 306 (2023), and Percoco v. United States, 598
U.S. 319 (2023), two Supreme Court decisions issued while the Rule 29
motions were being briefed, “signal[led] limits on the scope of the
honest services wire fraud statute.” Full Play Grp., 690 F. Supp. 3d at
8. It further reasoned that there was an absence of cases decided
before McNally v. United States, 483 U.S. 350 (1987),5 that applied
4 Defendants were also charged with, and convicted of, money laundering
conspiracy. And although Defendants were charged with substantive fraud and
racketeering, the government ultimately did not proceed to trial on those counts.
5 As discussed further below, McNally held that the federal mail fraud
statute, 18 U.S.C. § 1341, was confined to the protection of property rights and thus
did not reach the intangible right to honest services. 483 U.S. at 356. McNally was
later abrogated by the enactment of § 1346.

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honest services wire fraud to foreign commercial bribery6; that this
court viewed as unsettled the question of “‘whether a foreign
employee’s duty to his foreign employer qualifies as an actionable
element under § 1346’”; that Ciminelli and Percoco strongly
discouraged expanding the reach of the federal wire fraud statutes;
and that no Second Circuit precedent compelled the conclusion that
the conduct at issue fell within the scope of § 1346. Id. at 33–37
(quoting Napout, 963 F.3d at 184).
Judgments of acquittal as to Lopez and Full Play were entered
on September 12, 2023. The government timely appealed.
DISCUSSION
On appeal, the government challenges the district court’s post-
trial Rule 29 ruling on the basis that the district court erred in
determining, as a matter of law, that § 1346 does not cover foreign
commercial bribery. Defendants argue that the ruling was correct.
They also assert that acquittal is warranted for additional reasons not
reached by the district court: that (1) the government failed to prove
a fiduciary duty giving rise to honest services fraud liability; and
(2) the government failed to prove a conspiracy to deceive
CONMEBOL.
For the reasons set forth below, we agree with the government
and hold that § 1346, as construed by the Supreme Court and this
court, encompasses Defendants’ conduct. We further reject
6 The district court defined “foreign commercial bribery” as the “bribery of
foreign employees of foreign non-government employers,” Full Play Grp., 690 F.
Supp. 3d at 37, and the parties use that phrase in the same sense here, see Gov. Br.
at 6 (recognizing that district court used the term to mean bribery of a foreign
employee of a foreign employer); Lopez Br. at 24 (same); Full Play Br. at 45 (same).
We adopt the same meaning of this phrase when using it in this opinion.

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Defendants’ argument that the government failed to prove a breach
of fiduciary duty. We leave for the district court to decide in the first
instance whether the evidence presented by the government was
sufficient to prove a conspiracy to deceive CONMEBOL.
Standard of Review
“We review de novo a district court’s grant of a Rule 29 motion
based on a finding that the trial evidence was insufficient to support
the jury’s verdict, applying the same standard the district court
applies in review of the evidence.” United States v. Landesman, 17 F.4th
298, 319 (2d Cir. 2021). A defendant challenging the sufficiency of the
evidence bears a heavy burden, and we must view the evidence
presented in the light most favorable to the government and draw all
permissible inferences in the government’s favor. Id. A “jury verdict
must be upheld if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United
States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal quotation
marks omitted).
Questions related to the interpretation of a criminal statute are
reviewed de novo. Napout, 963 F.3d at 178.
I. Whether Defendants’ Conduct Falls Within the Scope of
§ 1346
The government argues that the district court’s Rule 29 ruling
was mistaken in multiple respects. It primarily contends that, in
determining that foreign commercial bribery falls outside the ambit
of § 1346, the district court failed to follow binding precedent of this
court and the Supreme Court, including United States v. Rybicki, 354
F.3d 124 (2d Cir. 2003) (en banc), Skilling v. United States, 561 U.S. 358

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(2010), United States v. Bahel, 662 F.3d 610 (2d Cir. 2011), and United
States v. Napout, 963 F.3d 163 (2d Cir. 2020). Relatedly, the
government argues that the district court erred in its interpretation
and application of Percoco, 598 U.S. at 319, and Ciminelli, 598 U.S. at
306, neither of which controls here nor abrogates binding precedent.
In response, Lopez and Full Play argue that, because foreign
commercial bribery was not clearly established as honest services
fraud before McNally v. United States, 483 U.S. 350 (1987), and because
the nature of the requisite fiduciary duty is unsettled law, the conduct
here cannot be criminalized under § 1346, especially in light of Percoco
and Ciminelli’s warnings against expanding the reach of the wire
fraud statutes beyond Congress’s express commands.
We agree with the government. Accordingly, we conclude that
the district court erred in holding that Lopez and Full Play’s conduct
was not within the bounds of § 1346.
A. Legal Background
We think it useful to provide an overview of the development
of the honest services fraud doctrine and a discussion of certain cases
relied upon by the parties.
Until 1987, federal courts read both the mail fraud statute, 18
U.S.C. § 1341, and the wire fraud statute, 18 U.S.C. § 1343, to
encompass “schemes to deprive another of the intangible right of
honest services” in addition to schemes to obtain money or property.
Rybicki, 354 F.3d at 133 (internal quotation marks omitted).
Over time, the honest services doctrine became
applicable to four general categories of defendants:
[1] government officials who defraud the public of their

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own honest services; [2] elected officials and campaign
workers who falsify votes and thereby defraud the
electorate of the right to an honest election; [3] private
actors who abuse fiduciary duties by, for example, taking
bribes; and [4] private actors who defraud others of
certain intangible rights.
Id. (internal quotation marks omitted) (brackets in original).
Then, in 1987, the Supreme Court decided McNally, holding
that the mail fraud statute was confined to the protection of property
rights and thus did not reach honest services or other intangible
rights. 483 U.S. at 356, 360. In so holding, the Court explained that it
refused to “construe the statute in a manner that leaves its outer
boundaries ambiguous,” and noted that “[i]f Congress desires to go
further, it must speak more clearly than it has.” Id. at 360.
Thereafter, Congress did speak more clearly. In 1988, it enacted
18 U.S.C. § 1346, which clarified that, for the purposes of, among
others, the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343,
“the term ‘scheme or artifice to defraud’ includes a scheme or artifice
to deprive another of the intangible right of honest services.” Pub. L.
No. 100–690, Title VII, § 7603(a), 102 Stat. 4508 (1988).
Congress did not define “the intangible right of honest
services,” but case law has since provided guidance and guardrails
for courts interpreting the statute’s reach. This court addressed § 1346
in Rybicki, in which the defendants—lawyers who had been convicted
of mail and wire fraud for paying claims adjusters employed by
insurance companies to expedite the settlement of their clients’
claims—challenged § 1346 on vagueness grounds. 354 F.3d at 128.
Upon rehearing en banc, we rejected the defendants’ challenge and
held that their conduct fell “squarely within the meaning of ‘scheme

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or artifice to deprive another of the intangible right of honest services’
as distilled from the pre-McNally private sector cases.” Id. at 142.
Notably, the court viewed pre-McNally case law as “pertinent,” but
not binding “in the stare decisis sense.” Id. at 145.
A few years later, in Skilling, the Supreme Court construed
§ 1346 to reach only schemes that involved bribery or kickbacks,
concluding that “[r]eading the statute to proscribe a wider range of
offensive conduct . . . would raise the due process concerns
underlying the vagueness doctrine.” 561 U.S. at 408. The Court
reasoned that “Congress intended § 1346 to refer to and incorporate
the honest-services doctrine recognized in Courts of Appeals’
decisions before McNally,” and the “vast majority” of those decisions
“involved offenders who, in violation of a fiduciary duty, participated
in bribery or kickback schemes.” Id. at 404, 407 (internal quotation
marks and citation omitted). “[B]y confining [the statute’s] scope to
the core pre-McNally applications,” the Court “salvaged” “Congress’
reversal of McNally and reinstatement of the honest-services
doctrine” without “transgressing constitutional limitations.” Id. at
408–09.
Applying its construction of § 1346, Skilling overturned the
conviction of Enron’s CEO, Jeff Skilling, who had been convicted of
honest services wire fraud on the theory that he manipulated and
issued false statements regarding Enron’s publicly reported financial
results, thereby depriving Enron and its shareholders of his honest
services. Id. at 369. Because the government had not alleged that
Skilling solicited or accepted payments in exchange for making such
misstatements, the Court determined that Skilling’s conduct was
beyond the reach of § 1346. Id. at 413–14. The Court also implicitly
acknowledged that the violation of a fiduciary duty was an element

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of honest services fraud. Id. at 407; see also United States v. Mangano,
128 F.4th 442, 470 (2d Cir. 2025) (“As a result of [Skilling’s]
construction, a violation of a fiduciary duty is an element of honest
services fraud.” (internal quotation marks and citation omitted)).
Shortly after Skilling, we decided Bahel, in which the defendant,
a foreign employee of the United Nations who, in contravention of
the organization’s rules, had accepted bribes from a foreign vendor.
662 F.3d at 617. The defendant argued that his conviction for use of
mail or wires to further honest services fraud on this ground exceeded
the scope of § 1346. Id. at 632. We disagreed. Notably, we rejected
Bahel’s argument that he could not be prosecuted for honest services
fraud because “none of the pre-McNally cases extended an ‘honest
services’ theory of fraud to an international setting involving foreign
nationals,” observing that neither Skilling nor Rybicki had limited
§ 1346 based on the identity of the actors involved in the scheme. Id.
(alterations accepted) (internal quotation marks omitted). We further
noted that this court had not construed § 1346 to exclude bribery of
foreign officials in foreign countries, and that, in any event, the
conduct at issue (1) took place within the territorial United States and
(2) victimized “an organization headquartered in the United States,
entitled to defendant’s honest services in the United States, and
receiving its largest financial contributions from the United States.”
Id. Finally, we rejected the contention that a violation of local law was
required for a breach of fiduciary duty. Id. at 633.
As mentioned above, in 2020, we affirmed the honest services
fraud convictions of two defendants—Napout and Marin—who had
been prosecuted as part of the same investigation at issue here.
Napout, 963 F.3d at 190. We rejected the defendants’ argument that
§ 1346 was unconstitutionally vague as applied to them. Id. at 181–

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84. Having determined that the vagueness challenge had to be
reviewed for plain error, thereby requiring the defendants to show an
error that was “clear under current law,” we concluded that their
challenge could not succeed because “whether a foreign employee’s
duty to his foreign employer qualifies as an actionable element under
§ 1346 is a question that remains unsettled, at best.” Id. at 183–84. We
also rejected the defendants’ contention that there was insufficient
evidence to establish the existence of a fiduciary duty, observing that
“the government’s evidence was easily sufficient to prove that FIFA
and CONMEBOL’s respective codes of ethics expressly provided that
persons bound by those codes, including, inter alia, that ‘all’ soccer
‘officials,’ such as Marin and Napout, had ‘a fiduciary duty to FIFA
and the confederations such as CONMEBOL,’ and were required to
‘act with absolute loyalty’ to them.” Id. at 185 (alterations accepted).7
More recently, in Percoco, the Supreme Court addressed the
fiduciary duty element of § 1346. 598 U.S. at 319. The question in
Percoco was whether a private citizen who had influence over
government decision-making, but who did not hold public office,
could be convicted of honest services wire fraud. Although the Court
declined to hold that a person outside public employment could never
have a fiduciary duty to the public, the Court found that the jury
instructions before it, which “told the jury that Percoco owed a duty
of honest services to the public if (1) he dominated and controlled any
7 In a concurrence, Judge Hall opined that even on de novo review, he would
have concluded that § 1346 was not unconstitutionally vague as applied to the
defendants because they, “by virtue of their relationship with FIFA and
CONMEBOL, had a fiduciary duty not to accept bribes or kickbacks, a duty that
was explicitly laid out by the two associations’ respective codes of conduct,” and
“the element of honest services in § 1346 encompasses ‘the obligations of loyalty
and fidelity that inhere in the employment relationship.’” Napout, 963 F.3d at 190–
92 (Hall, J., concurring) (quoting Skilling, 561 U.S. at 417 (Scalia, J., concurring)).

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governmental business and (2) people working in the government
actually relied on him because of a special relationship he had with
the government,”8 were too vague. Id. at 330 (internal quotation
marks omitted).
On the same day that it issued Percoco, the Supreme Court
issued Ciminelli, which did not address honest services wire fraud but
warned against “expand[ing] federal jurisdiction without statutory
authorization.” 598 U.S. at 315 (holding invalid this court’s “right-to-
control” theory of wire fraud).
We draw several conclusions from the cases discussed above.
First, for § 1346 to apply, the conduct at issue must involve bribery
and/or kickbacks. See Skilling, 561 U.S. at 409.
Second, the requisite fiduciary relationship cannot be
determined based on a test for dominance and control or reliance, see
Percoco, 598 U.S. at 330, but an employer-employee relationship, or a
similar relationship, is a well-accepted example of a fiduciary
relationship that falls within the scope of § 1346, see Skilling, 561 U.S.
at 407 n.41 (listing employer-employee relationship as example of
fiduciary duty that was usually “beyond dispute” in pre-McNally
cases); Rybicki, 354 F.3d at 126–27 (including “relationship that gives
rise to a duty of loyalty comparable to that owed by employees to
employers” as example of fiduciary duty); see also Nouri, 711 F.3d at
8 The jury instructions were based on this court’s decision in United States v.
Margiotta, 688 F.2d 108 (2d Cir. 1982), which outlined two tests for determining
when a private person owes a fiduciary duty to the general citizenry: “(1) whether
others relied upon the accused because of his special relationship in the
government and (2) whether he exercised de facto control over governmental
decisions.” Percoco, 598 U.S. at 326–27 (internal quotation marks omitted)
(alterations accepted).

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137 n.1 (“The existence of a fiduciary relationship between an
employee and employer is beyond dispute, and the violation of that
duty through the employee’s participation in a bribery or kickback
scheme is within the core of actions criminalized by § 1346.” (internal
quotation marks omitted)).
Third, a violation of local law is not required to establish a
breach of a fiduciary duty, see Bahel, 662 F.3d at 633, and an
employee’s violation of his employer’s codes of conduct—including
the exact codes at issue here—may establish such a breach, see Napout,
963 F.3d at 184–85 (violation of FIFA and CONMEBOL codes of
ethics); see also Rybicki, 354 F.3d at 127 (employers had “written
polic[ies] that prohibited the [employees] from accepting any gifts or
fees and required them to report the offer of any such gratuities”);
Bahel, 662 F.3d at 617 (United Nations rules, including duty to avoid
using position for personal gain, informed “contours of the duty
Bahel owed to his employer”).
Fourth, the presence of foreign defendants or an international
component to a scheme does not categorically remove an offense from
the ambit of § 1346. See Bahel, 662 F.3d at 632 (rejecting argument that
schemes involving “an international setting involving foreign
nationals” are beyond reach of § 1346).
B. Application of § 1346 to Lopez and Full Play
As an initial matter, we note that the district court plainly relied
on Percoco and Ciminelli as the basis for its departure from its prior
rejection of nearly identical arguments regarding the scope of § 1346
raised in Defendants’ motions to dismiss the indictment. See Full Play
Grp., 690 F. Supp. 3d at 8 (“Although before trial the Court rejected
some of the same legal arguments Defendants now renew in their

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post-trial motions, because of intervening Supreme Court decisions
signaling limits on the scope of the honest services wire fraud statute,
the Court grants Defendants’ motions and vacates their
convictions.”), 36 (“In light of the Supreme Court’s guidance in
Ciminelli and Percoco, this Court is compelled to reverse its previous
ruling regarding § l346’s scope.”). Neither Percoco nor Ciminelli,
however, controls this case.
Percoco considered fiduciary duties under § 1346 in the context
of duties to the public, specifically in the unique context where the
defendant did not actually hold public office. 598 U.S. at 322. It did
not address commercial actors or employment relationships like those
at issue here. Ciminelli was even further afield—it addressed the
scope of § 1343, not § 1346. 598 U.S. at 308. Indeed, counsel for Full
Play conceded at oral argument that Ciminelli and Percoco did not
change the landscape of the honest services fraud doctrine for
purposes of this case. Oral Arg. Recording at 47:40-49:00.
Intellectually curious jurists, and certainly law professors, can
debate whether Percoco and Ciminelli “signal[ed] limits on the scope of
the honest services wire fraud statute.” Full Play Grp., 690 F. Supp. 3d
at 8 (emphasis added). But in adjudicating the case before us, we
must focus on the concrete holdings of the cases that currently bind
us rather than on “signals” that may forecast future decisions. See In
re Grand Jury Subpoenas Dated Sept. 13, 2023, 128 F.4th 127, 140 (2d Cir.
2025) (“[A] Court of Appeals should follow the case which directly
controls.” (internal quotation marks omitted)). Here, those concrete
holdings lead us to conclude that Defendants’ conduct falls within the
scope of § 1346.

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1. Precedent Does Not Require a Pre-McNally
Factual Twin
We do not view precedent as requiring us to find a pre-McNally
case factually identical to this one to conclude that the conduct here
falls under § 1346.
Lopez and Full Play essentially contend that because they
cannot find exact replicas of the fact pattern we are confronted with
here—including the specific sort of fiduciary relationship at issue
here—in pre-McNally case law, foreign commercial bribery of the sort
with which they were charged is not encompassed by § 1346. See, e.g.,
Lopez Br. at 2 (“No pre-McNally case involved commercial bribery
that allegedly deprived a foreign private employer of the honest
services of its foreign employees.”). But such a methodology is
unduly restrictive. To be sure, the Supreme Court endorsed the
approach of looking to pre-McNally case law to determine the general
conduct and duties encompassed by § 1346. See Skilling, 561 U.S. at
404 (looking “to the doctrine developed in pre-McNally cases in an
endeavor to ascertain the meaning of the phrase ‘the intangible right
of honest services’” and confining § 1346 to the “core” conduct
covered by those cases); see also Percoco, 598 U.S. at 328 (“Skilling was
careful to avoid giving § 1346 an indeterminate breadth that would
sweep in any conception of ‘intangible rights of honest services’
recognized by some courts prior to McNally.”). Neither the Supreme
Court nor this court, however, has held that whenever a specific fact
pattern cannot be located in virtually identical form in pre-McNally
case law, it is not covered by § 1346.
Percoco observed that a “smattering of pre-McNally decisions”
is insufficient to transform an “ill-defined category of circumstances”
into situations that trigger “[t]he intangible right of honest services.”

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598 U.S. at 328–29. It does not follow that more than a “smattering of
pre-McNally cases” is necessary to establish that a particular scheme is
criminalized by § 1346. Neither the Supreme Court nor this court has
ever held that pre-McNally decisions are the only sources that inform
our analysis of § 1346. Indeed, we have recognized well-accepted
fiduciary duties as falling within the scope of § 1346 without looking
to pre-McNally case law for factual analogies. See, e.g., United States v.
Avenatti, 81 F.4th 171, 194 n.27 (2d Cir. 2023) (stating that defendant
“cannot . . . argue that he lacked notice that, as an attorney, he owed
a fiduciary duty to his client” and citing United States v. Chestman, 947
F.2d 551, 568 (2d Cir. 1991) (en banc), for proposition that attorney-
client relationship was “hornbook fiduciary relationship”).
Rather than investigate whether pre-McNally case law contains
perfectly analogous foreign commercial bribery prosecutions, we find
it more useful to dissect the schemes before us into their salient
components and look at each separately to determine whether any
component takes the scheme outside the scope of § 1346. Such
components include the conduct at issue; the players involved in the
scheme; where the scheme took place; and the nature of the fiduciary
duty that was purportedly breached. Although the district court
similarly disentangled the relevant issues, see Full Play Grp., 690 F.
Supp. 3d at 33, unlike the district court, we conclude that this
approach inexorably leads to the conclusion that Defendants’
schemes are properly encompassed by § 1346.
2. Defendants’ Conduct is Covered by § 1346
Defendants do not dispute that Lopez and Full Play’s conduct,
i.e., engaging in bribery, is an example of the core conduct proscribed
by § 1346. Nor do they argue that certain international elements of

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the schemes, such as Full Play’s foreign citizenship or the fact that
certain conduct occurred abroad, in themselves place Defendants’
activities beyond the reach of § 1346. The crux of Defendants’
argument, rather, is that the fiduciary duty that was breached—the
bribed foreign officials’ duties to their foreign employers—is not
cognizable under § 1346.
We disagree. The fiduciary nature of the relationship between
the bribed officials and their respective organizations, i.e., an
employer-employee relationship, is one that is commonly recognized,
including by pre-McNally cases, as “beyond dispute.” See Skilling, 561
U.S. at 407 n.41; Nouri, 711 F.3d at 137 n.1; see also Rybicki, 354 F.3d at
126–27 (recognizing fiduciary duty where defendant and victim were
“in a relationship that gives rise to a duty of loyalty comparable to
that owed by employees to employers”). And, like the United
Nations in Bahel, see 662 F.3d at 617, FIFA and CONMEBOL had
express rules proscribing the use of an employment position for
personal gain and imposing on officials a duty of “absolute loyalty.”
Gov. App’x 114, 567. Indeed, Defendants do not dispute that an
employer-employee relationship is a well-recognized fiduciary
relationship that falls within the scope of § 1346; they argue instead
that a foreign employee’s duty to his foreign employer does not yield a
cognizable duty under the honest services doctrine.
Yet Bahel counsels that the foreign identity of the officials and
their employers does not remove the schemes from § 1346’s reach.
There, like here, the bribed official was a foreign national and the
victim was a multinational organization with global operations. 662
F.3d at 616. And there, like here, there was relevant misconduct
within the United States contributing to the breach of duty.
Moreover, Bahel explicitly observed “that fraud actionable under

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Section 1346 is limited to the nature of the offenses prosecuted in the
pre-McNally cases (i.e., bribery and kickback schemes)—not the
identity of the actors involved in those cases.” Id. at 632.
Defendants attempt to distinguish Bahel by focusing on its dicta
regarding the United Nations being “headquartered in the United
States, entitled to defendant’s honest services in the United States, and
receiving its largest financial contributions from the United States”
and pointing out that CONMEBOL is headquartered in Paraguay.
Lopez Br. at 37 (quoting Bahel, 662 F.3d at 632); Full Play Br. at 51–52
(same).9 But Bahel does not hold that the headquarters of an
organization is dispositive. In any event, the victim of the Copa
América Centenario scheme, CONCACAF, is headquartered in the
United States. And, although FIFA and CONMEBOL are not based
in the United States, the United States Soccer Federation is involved
with both organizations: it is a member of FIFA and has hosted
tournaments and games connected to both FIFA and CONMEBOL,
such as the Copa América Centenario, a joint CONCACAF-
CONMEBOL tournament, and friendlies with CONMEBOL teams.
Lopez and Full Play also argue that it would be improper to
recognize a fiduciary duty where relevant foreign laws may not
recognize such duties. See Lopez Br. at 38 (“[T]here is no . . . hornbook
law establishing a fiduciary relationship between foreign employers
and their foreign employees—American hornbooks and
9 Defendants argue that this case should be analogized instead to United
States v. Giffen, which held that a United States citizen’s bribing of a Kazakhstani
government official fell outside the scope of § 1346. 326 F. Supp. 2d 497, 505-06
(S.D.N.Y. 2004). Aside from its lack of precedential value, Giffen is factually
distinguishable. There, the bribed official breached a duty to a foreign public. Id.
at 506-07. Here, the bribed officials breached a duty to international organizations
with significant ties to the United States.

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Restatements do not apply in Paraguay.”), 45 (“There is no reason to
believe that Paraguay, a civil-law country, recognizes any sort of
fiduciary duty akin to what courts have created as a matter of Anglo-
American common law.”). As discussed above, however, our cases
have indicated that an analogous violation of local law is not required
to establish a breach of fiduciary duty. See, e.g., Bahel, 662 F.3d at 633;
see also Napout, 963 F.3d at 191 (Hall, J., concurring).
Finally, Defendants and the district court read much into our
statement in Napout that “whether a foreign employee’s duty to his
foreign employer qualifies as an actionable element under § 1346 is a
question that remains unsettled, at best.” 963 F.3d at 184. Napout,
however, was addressing a vagueness challenge on plain error
review, and made clear that the defendants had “pointed [the court]
to no authority directly supporting their position” that there was no
cognizable breach of fiduciary duty (and thus failed to establish an
error that was clear under current law). Id. Taken in context, this
statement does not undercut our conclusion that there exists a
cognizable fiduciary duty here. In fact, the statement implied that, at
worst, the law foreclosed the defendants’ argument that there was no
cognizable breach, as Judge Hall opined in concurrence. See id. at 191
(Hall, J., concurring).
We conclude, therefore, that the nature of Defendants’ conduct
(bribery), coupled with the character of the relationship between the
bribed officials and the organizations to whom they owed a duty of
loyalty (employer-employee relationships), place the schemes
presumptively within the scope of § 1346. Further, the foreign
identity of certain organizations and officials does not remove the
schemes from the ambit of § 1346, especially where, as here, relevant
conduct occurred in the United States, for the benefit of United States-

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based executives and organizations (e.g., Lopez and Fox), and the
victims were multinational organizations with global operations and
significant ties to the United States.
3. Defendants’ Other Arguments
Lopez and Full Play argue that the limited scope of domestic
bribery statutes, 18 U.S.C. §§ 201 and 666, in combination with
Congress’s “surgical precision” when extending other criminal
statutes to foreign commercial bribery, indicates that § 1346 does not
cover foreign commercial bribery. Lopez Br. at 27–30 (discussing the
Foreign Corrupt Practices Act and the Foreign Extortion Prevention
Act). But the wire fraud statute is not a bribery statute, and although
we may look to the bribery statutes to shed light on what Congress
meant by “bribery” or “kickback” in the wire fraud context, see
Skilling, 561 U.S. at 412, that does not mean that we should read the
statutes in a like manner. Further, we have specifically observed that
the wire fraud “statute reaches any scheme to defraud involving
money or property, [regardless of] whether the scheme . . . involves
foreign victims and governments.” United States v. Trapilo, 130 F.3d
547, 552 (2d Cir. 1997) (“[W]hat is proscribed is [the] use of the
telecommunication systems of the United States in furtherance of a
scheme” to defraud, and the “identity and location of the victim . . .
are irrelevant.”).
Lopez and Full Play also argue that “principles of international
comity counsel against interpreting vague statutes to cover internal
domestic affairs of foreign nations.” Lopez Br. at 32. Yet limitations
on the international application of the wire and mail fraud statutes
already exist. Statutes are presumed to have only domestic
application, and this court has explained “that in order for incidental

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domestic wire transmissions not 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.’” Napout, 963 F.3d at 179 (quoting Bascuñán v. Elsaca, 927
F.3d 108, 122 (2d Cir. 2019)).10
* * *
In sum, we hold that the schemes at issue here fall under § 1346
and that, therefore, the district court erred in holding that foreign
commercial bribery is excluded from § 1346’s reach as a matter of law
and vacating Defendants’ convictions.11
In so holding, we do not purport to establish a bright line rule
for what qualifies as honest services wire fraud under § 1346, nor do
we speculate as to where the outer bounds of the statute may lie. We
look only at the facts before us to determine that, under binding
precedent of this court and the Supreme Court, Defendants’ conduct
falls within the statute’s purview.
II. Whether the Government Failed to Prove a Fiduciary Duty
Lopez and Full Play argue, in the alternative, that even if their
conduct falls within the scope of § 1346, they should be acquitted
because the government failed to prove a fiduciary duty. They
10 The district court, in its pre-trial ruling on the motions to dismiss, rejected
Defendants’ argument that this case presented an impermissible extraterritorial
application of the wire fraud statute. Full Play Grp., 2021 WL 5038765, at *8 n.5. In
its decision on the Rule 29 motions, the district court noted that it still rejected this
argument, and the parties do not raise the issue of extraterritoriality in this appeal.
11 In light of the above, we need not reach the government’s argument that
the district court failed to construe the evidence in the light most favorable to the
government or that the government is entitled to a new trial.

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ground this argument in two principal points: (1) the foreign
jurisdictions at issue in this case do not recognize a general fiduciary
duty to employers and (2) the organizations’ respective codes of
ethics, as mere corporate policies, cannot establish the requisite
fiduciary duty.
This argument was raised below but, because it was
unnecessary to decide it given the district court’s ruling, the district
court did not reach it. Although “[i]t is this Court’s usual practice to
allow the district court to address arguments in the first instance,”
Dardana Ltd. v. Yuganskneftegaz, 317 F.3d 202, 208 (2d Cir. 2003), we
think it is prudent to consider this argument here because the issue is
closely tied to the question the district court did address, the scope of
§ 1346, and there is no need for fact finding or complex evidentiary
analysis. Cf. AXA Versicherung AG ex rel. Albingia Versicherungs AG v.
N.H. Ins. Co., 348 F. App’x 628, 630–31 (2d Cir. 2009) (summary order)
(remanding, where consideration of evidence was necessary, to allow
district court, which was “intimately familiar with the full scope of . . .
evidence[,] . . . the opportunity to address [the issue] in the first
instance”).
Our decision in Napout is instructive.12 There, we held that
evidence demonstrating soccer officials’ acceptance of bribes in
violation of FIFA and CONMEBOL’s respective codes of conduct was
sufficient to prove a breach of fiduciary duty for an honest services
12 Lopez and Full Play argue that the holding of Napout does not survive
Percoco, because Napout did not consider whether FIFA and CONMEBOL’s codes
of ethics satisfy Percoco’s “mandate” to define honest services “with the clarity
typical of criminal statutes.” Lopez Br. at 53 (quoting Percoco, 598 U.S. at 328). We
are not persuaded. As we have already explained, it is our view that Percoco did
not change the legal landscape relevant to this case. Napout’s sufficiency analysis
thus remains instructive.

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fraud conviction. 963 F.3d at 185. We observed that the FIFA and
CONMEBOL codes “expressly provided that persons bound by those
codes, including, inter alia, that all soccer officials, such as [the Napout
defendants], had a fiduciary duty to FIFA and the confederations
such as CONMEBOL, and were required to act with absolute loyalty
to them.” Id. (internal quotation marks omitted) (alterations
accepted). Importantly, we explicitly rejected the relevance of foreign
law for establishing the breach of fiduciary duty. See id. at 184–85
(“The appellants were not prosecuted for breaching a fiduciary duty
created by Paraguayan law— or Brazilian, Swiss or U.S. law, for that
matter.”).
Here too, the relevant fiduciary duties were established by the
bribed officials’ relationships to FIFA, the continental confederations,
and the individual national associations, not the laws of foreign
countries. And, the contours of those duties were informed by the
ethical codes to which the bribed officials were bound. See Bahel, 662
F.3d at 617 (“U.N. rules . . . inform[ed] the contours of the duty Bahel
owed to his employer”). The FIFA code of ethics explicitly defined
“official” to include executives of FIFA, its continental confederations,
and its member associations, Gov. App’x 94–95, and prohibited those
officials from accepting bribes, id. at 110. CONMEBOL’s code also
bound executives of member associations and prohibited them from
the same conduct. Id. 565–67. The government’s evidence thus easily
sufficed to establish that the respective codes established a fiduciary
duty that bound the bribe recipients, and that such duty was breached
when the bribe recipients violated the codes.
Lopez and Full Play argue that the FIFA codes cannot supply
the relevant duty here because “[t]he FIFA code could not have
created a fiduciary duty between CONMEBOL and its employees;”

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“FIFA’s continental confederations (e.g., CONMEBOL) are not
members of FIFA;” and there was no “evidence suggesting FIFA’s
code applied to regional events such as the Copa Libertadores,
organized by regional authorities rather than FIFA itself.” Lopez Br.
at 54. These arguments are easily rejected. The FIFA code bound not
only executives of FIFA, but also executives of the continental
confederations and member associations. And the FIFA code does
not limit its application to only those events that it directly organizes.
The evidence therefore was sufficient to prove that the bribed officials
here violated FIFA’s code of conduct by engaging in bribery
connected to the Copa Libertadores, Copa América, and the World
Cup qualifiers and friendlies, thereby breaching their fiduciary duty
to FIFA.
Lopez and Full Play’s concern regarding the arbitrariness that
would stem from “allowing criminal sanctions to flow from violations
of employment policies” is not cause for alarm. Lopez Br. at 51. It is
not the per se violation of an employment policy that triggers criminal
liability. Rather, the existence of such policies is relevant to assessing
whether a fiduciary duty exists—it does not “delegate[] lawmaking
power to private parties,” as Defendants contend. Id. at 52. And,
ultimately, it remains the province of a jury to determine whether the
facts adduced at trial establish the existence of a fiduciary relationship
between the relevant parties.
III. Whether the Government Failed to Prove a Conspiracy to
Deceive CONMEBOL
Defendants raise an additional alternative argument in support
of affirming the district court’s Rule 29 ruling: that the government
failed to prove a conspiracy to deceive CONMEBOL. Although raised
below, the district court did not address this argument, given its

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(erroneous) holding that Defendants’ conduct was not criminalized
by § 1346.
We leave this issue to be addressed by the district court in the
first instance on remand. See Dardana, 317 F.3d at 208; AXA
Versicherung AG, 348 F. App’x at 631–32.
CONCLUSION
For the foregoing reasons, we VACATE the judgments of
acquittal as to Lopez and Full Play and REMAND with instructions
to reinstate the jury’s verdict and conduct further proceedings
consistent with this opinion, including deciding whether to grant
relief under Rule 29 on the basis that the evidence presented by the
government was insufficient to prove a conspiracy to deceive
CONMEBOL.

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