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Michael Binday v. United States
Paid petition · United States Court of Appeals for the Second Circuit, No. 18-2143 · judgment January 15, 2019
Before the decision, about 2.8× the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a Second Circuit decision below, and a circuit split argued in the petition.
Question presented
In mail and wire fraud cases, the government does not have to prove a victim actually lost money or property, but it does have to prove a scheme designed to “obtain money or property.” The Second and Third Circuits, however, only require prosecutors to prove a victim has been deprived of a property right: a single strand in the bundle of property rights called the “right to control” property. A person is deprived of his right to control when he is deprived of information that may help him make an informed economic decision. Michael Binday was convicted under this lighter version of fraud. As broker for life insurance purchasers, he deprived insurance companies of just one piece of information that they thought was important: whether his clients intended to re-sell the policies to investors. Binday suffered two constitutional injuries at trial. First, he was prosecuted under the right to control theory of property, which is unconstitutionally vague. Second, his lawyer was ineffective because he argued facts and law contrary to established Second Circuit right to control precedents. His wrongheaded arguments led directly to Binday’s conviction. The questions presented are as follows: 1. Is a trial lawyer constitutionally ineffective when he embraces a legal argument directly contrary to existing circuit law?
Counsel of record
For petitioner
David William Shapiro
The Norton Law Firm
For respondent
Noel John Francisco
Jones Day
Proceedings
- Feb 24 2020Petition DENIED.
- Jan 22 2020DISTRIBUTED for Conference of 2/21/2020.
- Jan 17 2020Reply of petitioner Michael Binday filed.
- Jan 03 2020Brief of respondent United States in opposition filed.
- Nov 29 2019Motion to extend the time to file a response from December 4, 2019 to January 3, 2020, submitted to The Clerk.
- Nov 29 2019Motion to extend the time to file a response is granted and the time is further extended to and including January 3, 2020.
- Oct 23 2019Motion to extend the time to file a response is granted and the time is further extended to and including December 4, 2019.
- Oct 22 2019Motion to extend the time to file a response from October 30, 2019 to December 4, 2019, submitted to The Clerk.
- Sep 25 2019Motion to extend the time to file a response is granted and the time is extended to and including October 30, 2019.
- Sep 24 2019Motion to extend the time to file a response from September 30, 2019 to October 30, 2019, submitted to The Clerk.
- Aug 27 2019Petition for a writ of certiorari filed. (Response due September 30, 2019)
- Jul 03 2019Application (19A25) granted by Justice Ginsburg extending the time to file until October 3, 2019.
- Jun 24 2019Application (19A25) to extend the time to file a petition for a writ of certiorari from August 4, 2019 to October 3, 2019, submitted to Justice Ginsburg.