* The Honorable Jed S. Rakoff, of the United States District Court for the Southern

District of New York, sitting by designation. 06-2420-cr United Sta

tes v. Car lo UNIT ED S TAT ES COU RT OF A PP EALS

FOR THE SE CON D CIR CUIT August Term, 2007 Argued: October 16, 2007 Decided: November 19, 2007 Docket No. 06-2420-cr

_________________________________ UNITED STATES OF AMERICA, Appellee,
–v.– PETER R. CARLO, Defendant-Appellant
.

____________________________________

Before: KEARSE and KATZMANN, Circuit Judges , RAKOFF, District Judge
. * Appeal from the May

10, 2006 judgment of the United States District Court for the Southern District of New York (Patterson, J. ) of conviction after jury trial. Affirmed.

____________________________________

S ETH C. F ARBER , (J ame s P . S mi th III, Ma th ew L. DiRisio, of counsel), Dewey & LeBe ouf LL

P, New York, New York, for Defendant-Appellant D ANIEL W. L EVY (Katherine Polk Failla, Michael A. Levy, Assistant United States Attorneys, of counsel ) for Michael J. Garcia, United States Attorney for the

Southern District of New York,-2- New York, New York, for Appellee
.

__________________________________ P ER C URIA M : The defendant Peter Carlo appeals from a judgment of conviction entered May 10, 2006, following a jury

trial on one count of wire fraud in violation of 18 U.S.C. § 1343 and one count of conspiracy

to commit wire fraud in violation of 18 U.S.C. § 371. He challenges the
su ff ic ie nc y of th e e vi de nc e t o s up po rt th at co nv ic ti on an d c er ta in in st ru ct io ns gi ve n t o t he ju ry. The gov ernment ’s proof

at trial in cluded e vidence of Carlo’ s partici

pation in a

scheme whereby he , along

with others, defra

uded rea l estate d evelope rs by making m

isrepre sentation s to the developers as to the status of Carlo’s attempts to secure funding for their development projects. Carlo, hoping to, inter alia , collec t a fee f rom closin

g such f inancing deals, so ught to persuade the developers to continue to seek their funding through Carlo. His plan for obtaining the desir ed finan cing inc luded att

empting to arra nge for one inst

itution, Se attle-N orthwest Securitie s Corpora

tion, to se ll bonds ba

cked by the deve lopers’ project s and atte mpting to arrange for another

institution, Allianz AG, to provide “credit enhancement,” i.e. , guarantee of the payments on the bonds. Seattle-N orthwest informed Carlo that it would evaluate his funding request s on a proj ect-by

-project basis only

after c ompleting

due dilig ence an

d after Carlo obtained credit enhancement. A number of deve lopers sought assurances that loans would soon be forthcoming, stating

that they were experienc ing neg ative financial e ffects f rom the de lay

in receiving, or learning tha t they would not rece ive, the needed funding. Despite the fac t that no due di ligenc e was co mplet ed, th at no f undi ng appr oval f

rom S eattl e-Nort hwest was fo rthco ming, that no cr edit enha ncement commitmen

t was made

by A llianz, and

that he in

deed ne ver dea lt1 Walker deals wit h mail fra ud, but the

analy sis of mail

fraud a nd wire f raud is, i n all respects material to this case, identical. See Unite d States v . Autuori , 212 F.3d 105, 115 (2d Cir. 2000). -3- with Allianz directly, Carlo repre sented to several developers that their financing proposals had been approved and that loans would shortly be forthcoming. On an appeal challenging the sufficiency

of the evidence to support a conviction, we view the evide nce in the light most

favora ble to the gover nment, dr awing a ll reason able inf erence s in its favor , and rev erse onl

y if no rational factf

inder co uld have f

ound gui lt bey

ond a rea sonable doubt. United Sta tes v. Ga skin , 364 F.3d 438, 459-60 (2d Cir. 2004). To sustain a conviction for wire fr aud unde r 18 U.S.C. § 1343 (except as mo dified by § 1346) a

nd conspir

acy to commit such wire fraud, t he gove rnment mus t prove that the de fendant acted with specif

ic intent t o obtain money or prope

rty by means of a fraudulent scheme that contemplated ha rm to the property intere sts of the victim. See United States v. Walke r , 191 F.3d 326, 334-35 (2d Cir. 1999). 1 See generally McNally v. United States , 483 U.S. 3 50 (1987) . While the i nterests protected by the

mail and wire fraud statutes do not genera lly extend to intangible rights (e xcept as modifie d by

18 U.S.C. § 1 346), the

y do extend to a

ll kinds of p

roperty interest s, both tan

gible and intangible. Carpenter v. United States , 484 U.S. 19, 25 (1987). Since a defining feature of most prope

rty is the rig ht to contr

ol the ass et in ques tion, we h ave rec ognized t hat the pr operty interests protected by

the statutes include the interest of a victim in controlling his or her own assets. See Walker, 191 F.3d at 335; United States v. Rossomando , 144 F.3d 197, 201 n.5 (2d Cir. 1998) (“[T]he concrete harm [to the victim’s property interest] contemplated by the defendant is to deny

the victim the right to control its assets by de priving it of information necessary to make discretionary

economic decisions.”).-4-

We find tha

t the gov ernment

introduc ed suffi cient evidence f or a rea sonable j ury

to conclude that Carlo knowingly gave false and misleading infor mation to real estate developers about the status of funding he was try ing to arrange for the

m in the hope that they would continue their pro jects, a t grea t risk and expense, w

hile he pu rsued an ever-d windling chance of actua lly securin g fundin g. The j ury

could fin d that Car lo intende d that the

develope rs rely on his misstateme

nts to dec ide to con

tinue the ir projec

ts, thus pr eservin g Carlo ’s only

chance to earn h is fee. B y c ausing t

he deve lopers to

make ec onomic de cisions a bout the vi ability

of their r eal esta te projects based on misleading information, Carlo harmed the deve lopers’ property interests. See United States v. DiNome , 86 F.3d 277, 284 (2d Cir. 1996). That Carlo wanted the funding transactions to clo se (bec ause tha t was the only

way for him to e arn his f

ee) doe s not neg ate his intent to inflict a genuine harm on the victims by depriving them of material information necessary to determine for themselves whether to continue their development pr ojects, thereby continuing or increasing their exposure to the risk of the pr ojects’ failure. See id. ; see also Rossomando , 144 F.3d at 201. When an objection to a jury cha rge is adequately

preserved below, we review a claim of error in the charge de novo
. See United States v. Tropeano , 252 F.3d 653, 657-58 (2d Cir. 2001). Even ass uming tha

t Carlo’s objection was ade quate, w e find tha t the tria l court pr operly instructed the jury on the r ight-to-control theory

of wire fraud. The court properly described the harm to the victims’ property inter ests as the deprivation of information necessary to make discretionary e conomic decisions. See Rossomando , 144 F.3d at 201 & n.5. There was no danger in this case that the jury might have found that the misinformation—false statements that the funding had been approved and was imminent—could have misled the victims in any-5-

immaterial, non-pecuniary way. See DiNome , 86 F.3d a t 284; cf. United States v. Mittelstaedt , 31 F.3d 1208, 1216-17 (2d Cir. 1994). Carlo’s objection to the conscious avoidance instruction is similarly without merit. There was nothing inappropriate or inconsistent in the governme nt arguing that Carlo had actual knowl edge th at his state ments were fal se or, in th e alte rnati ve, th at he w as awar e of a hi gh probability that they

were false, but consciously avoided confirming that suspicion. See United States v. Svoboda , 347 F.3d 471, 480 ( 2d Cir. 200 3); United States v. Mang Sun Wong, 884 F.2d 1537, 1542(2d Cir. 19 89). The consciou s avoidan

ce char ge was appropr iate bec ause Car

lo asserted that he did not know that his statements were false and the government presented an adequate factual predicate f or the charge. See United States v. Ferrarini , 219 F.3d 145, 154 (2d Cir. 2000) . We fi nd th at the govern ment i ntrod uced ev idenc e that Carlo was awa re of a h igh probabil ity t

hat the in formation about cr edit enha ncement that he r eceive d from his c ontacts in Europe (which he then repeated to the de velopers) was false, and if he did not actually know that the information was false, it was only because he deliberately

avoided confirming his suspicion. We have considered all of Carlo’s other arg uments and find them to be without merit. Ac co rd in gl y, f

or th e f or eg oi ng re as on s, th e j ud gm en t o f t he di st ri ct co ur t i s h er eb y AFFIRMED
.