United States v. Napout (332 F. Supp. 3d 533, 2018)

PAMELA K. CHEN, United States District Judge:

Defendants Juan Angel Napout, Jose Maria Marin, and Manuel Burga ("Defendants") are among numerous individuals charged with racketeering conspiracy and other offenses allegedly undertaken to enrich themselves by leveraging their various positions in the Federation Internationale de Football Association ("FIFA"); its continental, regional, and national affiliates; and certain sports marketing companies. In the operative indictment (Dkt. 604): (1) Napout was charged with one count of racketeering conspiracy, two counts of wire fraud conspiracy, and two counts of money laundering conspiracy; (2) Marin was charged with one count of racketeering conspiracy, three counts of wire fraud conspiracy, and three counts of money laundering conspiracy; and (3) Burga was charged with one count of racketeering conspiracy. After a six-week trial: (1) Napout was convicted of three counts and acquitted of two counts; (2) Marin was convicted of six counts and acquitted of one count; and (3) Burga was acquitted of the sole count against him.

Napout and Marin now move under Federal Rule of Criminal Procedure 29 for judgments of acquittal, or, alternatively, for a new trial pursuant to Federal Rule of Criminal Procedure 33. For the reasons stated herein, Napout's and Marin's motions are denied in their entirety.

BACKGROUND

A. The Indictments

On May 20, 2015, a grand jury in the Eastern District of New York returned a 47-count indictment charging 14 individuals, including Marin, with racketeering conspiracy, wire fraud, and money laundering offenses, among other crimes, in connection with alleged bribe payments made to FIFA officials in exchange for valuable broadcasting and marketing contracts. (Dkt. 1.) On November 25, 2015, the grand jury returned a 92-count superseding indictment ("S-1 indictment") charging sixteen additional defendants, including Napout and Burga, with the same racketeering conspiracy, among other crimes. (Dkt. 102.) On June 14, 2017, the grand jury returned a Second Superseding Indictment ("S-2 indictment") against Napout, Burga, and Marin, which was the operative indictment for their trial. (Dkt. 604.) The S-2 indictment contained seven counts.

Count 1 charged Napout, Marin, and Burga with conspiracy to engage in racketeering, in violation of 18 U.S.C. § 1962(c) & (d). The alleged enterprise consisted of FIFA, its six constituent continental confederations, affiliated regional federations, national member associations, and sports marketing companies. As predicate acts, the S-2 indictment alleged wire fraud in violation of 18 U.S.C. § 1343, money laundering and money laundering conspiracy in violation of 18 U.S.C. §§ 1956-57, interstate and foreign travel in aid of racketeering in violation of 18 U.S.C. § 1952, and obstruction of justice and conspiracy to obstruct justice in violation of 18 U.S.C. § 1512. (Dkt. 604 ¶ 123.)

Counts 2 and 3 charged Napout and Marin with wire fraud conspiracy (Count 2) and money laundering conspiracy (Count 3) in connection with the Copa Libertadores soccer tournament, an annual club soccer tournament organized by FIFA's continental confederation for South America, the Confederacion Sudamerica de Futbol ("CONMEBOL"), of which Defendants were officers.

Counts 4 and 5 charged Marin with wire fraud conspiracy (Count 4) and money laundering conspiracy (Count 5) in connection with the Copa do Brasil soccer tournament, an annual soccer tournament organized by Brazil's soccer confederation, the Confederacao Brasileira de Futbol ("CBF"), of which Marin was the president between March 2012 and April 2015.

Counts 6 and 7 charged Napout and Marin with wire fraud conspiracy (Count 6) and money laundering conspiracy (Count 7) in connection with the Copa America soccer tournament, an annual international soccer tournament organized by CONMEBOL.

B. Pre-Trial Rulings

The Court made several pre-trial rulings that bear on the present motions. By order dated February 17, 2017, the Court denied Napout's motion to dismiss the S-1 indictment as an impermissible extraterritorial application of the federal racketeering statute, the federal wire fraud statute, and the federal money laundering statute. See United States v. Hawit , No. 15-cr-252, 2017 WL 663542 (E.D.N.Y. Feb. 17, 2017). In denying Napout's motion, the Court held, inter alia , that the S-1 indictment alleged permissible domestic applications of the wire fraud statute and extraterritorial applications of the money laundering statute. See id. at *4-8. By extension, the Court also held that the S-1 indictment adequately alleged a RICO conspiracy based on domestic wire fraud predicate acts and extraterritorial money laundering predicate acts. See id. at *9-10. The Court advised the parties, however, that Second Circuit caselaw-most notably, European Community v. RJR Nabisco, Inc. , 764 F.3d 129 (2d Cir. 2014), rev'd on other grounds, RJR Nabisco, Inc. v. European Community , --- U.S. ----, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016), and Petroleos Mexicanos v. SK Eng'g & Constr. Co. , 572 Fed.Appx. 60, 61 (2014) (summary order)-has left undetermined the "domestic" reach of the wire fraud statute, thus putting all parties on notice of the importance of evidence concerning the "domestic" nature of the wire fraud charges against Defendants. See Hawit , 2017 WL 663542 at *5.

By order dated October 17, 2017, the Court ruled that the government, subject to specific objections at trial, would be permitted to present evidence that Napout and alleged co-conspirators engaged in obstruction of justice to conceal their criminal conduct. See United States v. Napout , No. 15-cr-252, 2017 WL 4685089 at *3-7 (E.D.N.Y. Oct. 17, 2017) (" Napout I "). Among other things, the Court ruled that the government could seek to introduce evidence concerning "the removal of electronic devices from Napout's CONMEBOL office, at Napout's direction, on the morning of Napout's December 3, 2015 arrest in Zurich, Switzerland and the subsequent recovery and search of those devices by U.S. law enforcement." Id. at *2-7. The Court ruled that evidence in this category was generally admissible, both as evidence of the existence of a RICO conspiracy, as well as evidence of Napout's "consciousness of guilt," except that, to the extent the government sought to introduce this evidence to prove the existence of a RICO conspiracy, the government would also need to submit evidence that at least one person involved in the obstruction, other than Napout, was a member of the charged conspiracy prior to the alleged obstruction. Id. at *5-7 & n.7. The Court also ruled that evidence in this category was not unduly prejudicial, because the "acts of obstruction are really no different than Defendants' alleged acts of bribery, wire fraud, and money laundering: they all involve non-violent acts of dishonesty, deceit, and concealment." Id. at *7.

Jury selection in Defendants' trial began on November 6, 2017. On November 8, 2017, before the end of jury selection, the Court ruled from the bench on an omnibus motion in limine by the government (Dkt. 718). Among other things, the Court ruled, over Defendants' objections, that certain covertly-recorded audiotapes proffered by the government would be admissible at trial, so long as the government laid the proper evidentiary foundation. (Hr'g Tr. 55-127, Nov. 8, 2017.) The Court also ruled that evidence and argument about foreign law, i.e. , whether commercial bribery was illegal in Defendants' home countries, would be categorically excluded from the trial, holding that the evidence would generally not be relevant in this case under Federal Rule of Evidence ("FRE") 401, except for the following narrow purpose: for purposes of a charge of honest services wire fraud, a defendant could potentially "defend on [the element of] the intent to violate [his] fiduciary duty based on saying [he] never saw the [FIFA] rules, ... no one told [him] about the [FIFA] rules, and ... [he] assumed that [the FIFA rules] were somehow consistent with what [his] country allow[s] or doesn't allow and, therefore, [he] didn't have the intent or belief that [he] was violating [his] fiduciary duty as defined by the FIFA code[.]" (Id. at 90.) However, the Court further held that evidence of foreign law would be inadmissible at trial even for this limited purpose because, under FRE 403, the risk of confusing the jury and the risk of jury nullification substantially outweighed the probative value of any evidence of foreign law. (Id. at 90-91.)

On November 11, 2017, before the presentation of opening statements, the Court issued a written order addressing several remaining evidentiary matters. (Dkt. 796.) In relevant part, the order denied Marin's motion in limine to preclude a government expert, Dr. Stefan Szymanski, from offering any opinion testimony concerning the economic effects of corruption (Dkt. 732), and denied Napout's motion in limine to preclude the government from introducing at trial certain WhatsApp text messages between Napout and co-conspirator Alejandro Burzaco, as to which Napout's counsel had asserted work product protection (Dkt. 786; see also Dkt. 816 (Hr'g Tr., Nov. 9, 2017) ). With respect to Dr. Szymanski, the Court ruled that Dr. Szymanski's proffered testimony satisfied the requirements of FRE 702 and Daubert , and held that Defendants would suffer no prejudice from allowing Dr. Szymanski's testimony in any event. (Dkt. 786 at 4-5.) With respect to Napout's WhatsApp text messages with Burzaco, the Court ruled that the requirements of work product protection were not satisfied because the text messages themselves were written by two non-lawyers and not in anticipation of litigation or trial. (Id. at 5-9.)

C. Rulings During Trial

During the government's case in chief, the Court made additional rulings that Napout and Marin now contest in their post-trial motions. With respect to the admission of evidence concerning foreign law, on December 1, 2017, the Court sua sponte advised the parties that it would reconsider its prior order excluding all evidence of foreign law, and invited Defendants to make proffers about the specific evidence of foreign law they sought to introduce. (Trial Tr. ("Tr.") 2620-2622.) On December 8, 2017-still during the government's case in chief-the Court held a hearing to discuss the evidence proffered by Defendants. At the hearing, the Court ruled that the specific foreign-law evidence proffered by Defendants was inadmissible under FRE 401 and FRE 403. (Tr. 3460-3617.) The Court also noted, however, that if any of the three Defendants chose to testify at trial, he would not be precluded from testifying as to his own beliefs about foreign law and how those beliefs informed his understanding of the duties he owed to FIFA or another relevant soccer organization. (Id. at 3603-3604, 3616.) No Defendant testified at trial, and none of the Defendants proffered any additional evidence of foreign law beyond the forms of evidence deemed inadmissible during the December 8, 2017 hearing.

During its case in chief, the government moved for the admission of certain documents seized by Brazilian law enforcement from a safe in the offices of a Brazilian sports media company, Klefer Producoes E Promocoes Ltda. ("Klefer"). (Dkt. 826.) Among the documents seized were notes allegedly handwritten by one of Marin's co-conspirators, documenting bribe payments made to Marin and another co-conspirator (Marco Polo Del Nero) in exchange for valuable media contracts related to the Copa America tournament and the Copa do Brasil tournament. (Govt. Exhibit ("GX") 307.) Marin objected to the admission of the handwritten Klefer documents (GX 307, GX 308) on the ground that the government had failed to properly authenticate them. (Dkt. 825.) The Court ruled, under FRE 901(a), that the government had authenticated the documents by a preponderance of the evidence, and that the evidentiary weight, if any, to be given to the documents was for the jury to decide. (Tr. 2652-2653.)

At the end of the government's case in chief, Special Agent Steven Berryman of the Internal Revenue Service ("IRS") gave testimony concerning the government's investigation of corruption within FIFA generally and Defendants' corrupt conduct specifically. During cross-examination, Marin's counsel sought to question Berryman about his understanding of the role of then-CBF president Marco Polo Del Nero, i.e. , whether Del Nero was still president. (Tr. 3760-3765.) Marin sought to elicit from Berryman the fact that, despite allegations and evidence (introduced at Defendants' trial) that Del Nero had received bribe payments by virtue of his position as the president of the CBF, FIFA had neither removed Del Nero from his position nor instituted disciplinary proceedings against him. (Tr. 3764, 3778-3779.) After hearing argument at sidebar, the Court sustained the government's objection to that line of questioning, both on the ground that the questions called for hearsay (Tr. 3766, 3775-3776), and because, under FRE 403, the prejudicial effect of any such testimony would substantially outweigh its minimal probative value (Tr. 3771-3772, 3777).

D. The Verdict

On December 22, 2017, after five days of deliberation, the jury returned a verdict as to Napout and Marin. The jury convicted Napout of RICO conspiracy (Count One), conspiracy to commit wire fraud in connection with the Copa Libertadores soccer tournament (Count Two), and conspiracy to commit wire fraud in connection with the Copa America soccer tournament (Count Six). The jury acquitted Napout of conspiracy to commit money laundering in connection with the Copa Libertadores soccer tournament (Count Three), and conspiracy to commit money laundering in connection with the Copa America soccer tournament (Count Seven). The jury convicted Marin of RICO conspiracy (Count One), conspiracy to commit wire fraud in connection with the Copa Libertadores soccer tournament (Count Two), conspiracy to commit money laundering in connection with the Copa Libertadores soccer tournament (Count Three), conspiracy to commit wire fraud in connection with the Copa do Brasil soccer tournament (Count Four), conspiracy to commit wire fraud in connection with the Copa America soccer tournament (Count Six), and conspiracy to commit money laundering in connection with the Copa America soccer tournament (Count Seven). The jury acquitted Marin of conspiracy to commit money laundering in connection with the Copa do Brasil tournament (Count Five). On December 26, 2017, the jury returned its verdict as to Burga, finding him not guilty of the sole count for which he was on trial. (Dkt. 874.)

E. Napout's and Marin's Post-Trial Motions

On January 22, 2018, Marin and Napout moved separately for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29, or, alternatively, for a new trial pursuant to Federal Rule of Criminal Procedure 33. (Dkts. 887 ("Marin Br.") (omnibus brief), 888 ("Napout R29 Br."), 889 ("Napout R33 Br.").) The government filed an omnibus memorandum in opposition on February 21, 2018. (Dkt. 898 ("Govt. Br.").) Marin and Napout filed reply briefs on March 24, 2018. (Dkts. 909 ("Marin Reply Br."), 910 ("Napout R29 Reply Br."), 911 ("Napout R33 Reply Br.").)

LEGAL STANDARDS

A. Federal Rule of Criminal Procedure 29

Under Rule 29, "the court[,] on the defendant's motion[,] must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). "The test for sufficiency ... is whether a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the crime charged." United States v. Eppolito , 543 F.3d 25, 45 (2d Cir. 2008) (quotation omitted). The Court must make this determination with "the evidence against a particular defendant ... viewed in a light that is most favorable to the government ... and with all reasonable inferences ... resolved in favor of the government." Id. (quotation omitted). In other words, a court should deny a defendant's motion for acquittal if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Espaillet , 380 F.3d 713, 718 (2d Cir. 2004) (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (emphasis in Jackson ). To view the evidence in "the light most favorable to the government," the court must "credit[ ] every inference that the jury might have drawn in favor of the government," United States v. Temple , 447 F.3d 130, 136-37 (2d Cir. 2006), and "resolve all issues of credibility in the government's favor," United States v. Canady , 126 F.3d 352, 356 (2d Cir. 1997). To be sure, the court "must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that [each] element ... is established beyond a reasonable doubt." United States v. Triumph Capital Grp., Inc. , 544 F.3d 149, 159 (2d Cir. 2008). However, "it is the task of the jury, not the court, to choose among competing inferences that can be drawn from the evidence." United States v. Jackson , 335 F.3d 170, 180 (2d Cir. 2003). Furthermore, "[t]his 'traditional deference accorded to a jury's verdict is especially important when reviewing a conviction for conspiracy ... because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.' " Eppolito , 543 F.3d at 46 (quoting Jackson , 335 F.3d at 180 ).

B. Federal Rule of Criminal Procedure 33

Under Rule 33, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). In general, "a motion for a new trial 'should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.' " Smith v. Carpenter , 316 F.3d 178, 183 (2d Cir. 2003) (quoting Atkins v. New York City , 143 F.3d 100, 102 (2d Cir. 1998) ). In making this determination, the court "is not required to view the evidence in the light most favorable to the government," United States v. Lopac , 411 F.Supp.2d 350, 359 (S.D.N.Y. 2006), but instead must "examine the entire case, take into account all facts and circumstances, and make an objective evaluation[,]" United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001). The court may "weigh the evidence" for itself, "and in so doing evaluate for itself the credibility of the witnesses," United States v. Sanchez , 969 F.2d 1409, 1413 (2d Cir. 1992), but the court "must strike a balance between weighing the evidence and credibility of witnesses and not 'wholly usurping' the role of the jury," Ferguson , 246 F.3d at 133 (quoting United States v. Autuori , 212 F.3d 105, 120 (2d Cir. 2000) ). Ultimately, the court should order a new trial under Rule 33 if "it would be a manifest injustice to let the guilty verdict stand." Sanchez , 969 F.2d at 1414.

DISCUSSION

Napout and Marin move separately for judgments of acquittal under Rule 29 or, alternatively, for a new trial pursuant to Rule 33. In their motions for acquittal, Napout and Marin both argue that the government failed to prove certain elements of the crime of conspiracy to commit honest services fraud. Accordingly, the Court begins with a recitation of the elements of that crime.

A. Conspiracy to Commit Honest Services Fraud

As the Second Circuit recently explained, "[a] person commits wire fraud when, 'having devised or intending to devise any scheme or artifice to defraud,' he uses interstate wires 'for the purpose of executing such scheme or artifice.' " United States v. Halloran , 821 F.3d 321, 337 (2d Cir. 2016) (quoting 18 U.S.C. § 1343 ). Further, the honest-services fraud statute, 18 U.S.C. § 1346, defines the term "scheme or artifice to defraud" to include "a scheme or artifice to deprive another of the intangible right of honest services," 18 U.S.C. § 1346, "which the Supreme Court in turn has held to encompass 'only bribery and kickback schemes.' " Halloran , 821 F.3d at 337 (quoting Skilling v. United States , 561 U.S. 358, 368, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ).

In the post- Skilling era, to prove a crime of honest services fraud, the government must prove that a defendant (i) owed a fiduciary duty to not accept bribes or kickbacks in exchange for an official act, (ii) knowingly breached that duty by accepting a bribe or kickback in exchange for an official act, (iii) knowingly made a material misrepresentation or omission to the person or entity to whom the duty was owed in furtherance of his receipt of the bribe or kickback, and (iv) made use of the wires in furtherance of his receipt of the bribe or kickback. See Halloran , 821 F.3d at 337 (confirming that "a violation of a fiduciary duty" is an element of honest-services fraud (citing Skilling , 561 U.S. at 368, 130 S.Ct. 2896 ) ); United States v. Rybicki , 354 F.3d 124, 146-47 (2d Cir. 2003) (holding that a "material" misrepresentation or omission is an element of honest-services fraud); see also Tr. 4600-4611 (Jury Instructions).

In the case of a conspiracy to commit honest services fraud, the government must prove that two or more persons entered into an unlawful agreement, the aims of which included the crime of honest services fraud (as defined above), and that the defendant knowingly and intentionally joined and participated in the conspiracy. United States v. Valle , 807 F.3d 508, 515-16 (2d Cir. 2015).

B. Napout's Motion for Acquittal

Napout argues that he should be acquitted of all counts of which he was convicted-including his conviction for conspiracy to commit racketeering -on two grounds. First, Napout argues that "the government failed to establish that Mr. Napout's receipt of any [personal] payments ... resulted (or would have resulted) in any identifiable harm to FIFA or any confederation within the FIFA umbrella." (Napout R29 Br. at 1.) Second, Napout argues that "the government failed to present sufficient evidence to support [an] extraterritorial application" of the wire fraud statute or the racketeering statute. (Id. at 2.)

1. Napout's "Absence of Identifiable Harm" Argument

For purposes of his motion for acquittal, Napout does not challenge the sufficiency of the evidence on most of the elements of the crime of honest services fraud. Napout assumes that the government presented sufficient evidence to prove that Napout accepted or agreed to accept personal payments in exchange for official acts-namely, the awarding of valuable contract rights-in his position as a FIFA official. (Id. at 1, 12.) Napout further assumes that his acceptance or agreement to accept such personal payments was a violation of his fiduciary duty to FIFA, as embodied in the FIFA code of ethics. (Id. at 12.) Napout argues, however, that he is nonetheless entitled to an acquittal because the evidence failed to establish that "the payment of alleged 'bribes' would have injured FIFA or CONMEBOL by depriving those organizations of monies that would otherwise have been paid in exchange for contract rights." (Id. at 12.) Thus, Napout contends, the government failed to establish an element of honest services fraud, which defeats both of Napout's honest services fraud convictions (Counts Two and Six).

The flaw in Napout's argument, however, is that the crime of honest services fraud does not require a showing of pecuniary harm to the victim. Indeed, as the Second Circuit stated in Rybicki , "actual or intended economic or pecuniary harm to the victim need not be established" to prove a crime of honest services fraud. Rybicki , 354 F.3d at 145. Rather, the crime of honest services fraud must involve, among other things, a misrepresentation or omission that is "material" to the person who is defrauded of an intangible right of honest services-that is, a misrepresentation or omission that would "naturally lead to or is capable of leading a reasonable employer to change its conduct." Id. Accordingly, Napout's motion for a judgment of acquittal based on the government's failure to prove actual or intended pecuniary "harm" to FIFA is without merit.

Moreover, even if the government were required to prove that FIFA and its confederations suffered pecuniary harm as a result of Napout's and other FIFA officials' receipt of bribe payments, the Court would find that the government's evidence was sufficient. At trial, the government's expert, Dr. Szymanski, was qualified under FRE 702 and Daubert to testify as an expert in the business of sports with an emphasis on the sport of soccer. (Tr. 159-164, 195.) Among other things, Dr. Szymanski testified about the sale of "broadcast rights" for international soccer competitions, including the Copa America and Copa Libertadores. (Tr. 172-177.) Based on his examination of the market for broadcasting rights in international soccer, Dr. Szymanski testified that, in recent years, broadcasting rights have become "by far the most important" asset that an international soccer organization owns. (Tr. 175.) Dr. Szymanski identified "two immediate effects" of personal payments made to officials who have authority over the sale of broadcasting rights on behalf of international soccer organizations. (Tr. 191, 198.) First, because sports marketing companies typically have a specified amount they are willing to spend on broadcasting rights, "if some of that budget is going in the form of bribes to officials and executives, then that's less money for the soccer organization." (Tr. 191.) When a sports media company pays a bribe to a soccer official in exchange for the award of broadcasting rights, the amount paid to the soccer official is "lost [by the soccer organization] ... directly from the bribe." (Tr. 192.) Second, when a market for broadcasting rights is influenced by secret bribe payments, competitors in the market are "not likely to enter into competition to win the [media] right[s], so that the total amount paid is going to be less than you would get in a competitive environment." (Tr. 191.)

Napout argues that Dr. Szymanski's testimony concerning the effects of bribe payments on media right contracts was insufficient to establish materiality because his testimony was "not about any of the facts of this case." (Dkt. 910 at 6.) While Napout is correct that Dr. Szymanski did not review any of the specific media-rights contracts at issue in this case, or CONMEBOL's historical financial data, to prepare, for example, a statistical analysis isolating the financial impact of the specific bribe payments at issue in this case on CONMEBOL (Tr. 197-204), that does not render his testimony insufficient to establish harm to the organization. The economic principles that Dr. Szymanski explained based on his examination of the market for sports media rights-in particular, the principle that bribe payments made to a soccer official in exchange for the awarding of a valuable contract right directly translates into "less money for the soccer organization"-provided the jury with a sufficient basis on which to conclude that the specific bribe payments in this case resulted in lower contract prices for the relevant soccer organizations. Indeed, although Napout claims that a jury finding on that basis would be "mere speculation" (Dkt. 910 at 6-7), the jury was within its discretion to find materiality in this case based on the specific contracts presented and the economic principles set forth by Dr. Szymanski.

Accordingly, Napout is not entitled to acquittal on the basis of the government's alleged failure to prove "harm" or materiality.

2. Napout's Extraterritoriality Argument

Napout moves for a judgment of acquittal on the ground that his convictions for wire fraud conspiracy (Counts Two and Six) and racketeering conspiracy (Count One) are invalid because they were based on an improper extraterritorial application of the relevant statutes. In large part, Napout's motion for acquittal on this ground reiterates the same arguments he made in connection with his motion to dismiss the indictment, which the Court denied by order dated February 7, 2017. See Hawit , 2017 WL 663542, at *4-5. Napout now argues, however, that even if the government adequately alleged a domestic application of the relevant statutes, the government did not present evidence sufficient to establish such a domestic application.

a. Wire Fraud Conspiracy

As the Court explained in its February 7, 2017 order, the federal wire fraud statute, 18 U.S.C. § 1343, does not have extraterritorial application. Id. at *4 (citing RJR Nabisco , 764 F.3d at 140-41 ). Rather, the wire fraud statute applies "domestically" to schemes to defraud that have a sufficient connection to the United States, although the scheme may also involve foreign conduct. Id. (citing RJR Nabisco , 764 F.3d at 141-43, and Petroleos Mexicanos , 572 Fed.Appx. at 61 ).

Neither the Supreme Court nor the Second Circuit has established a definitive test for the domestic reach of the federal wire fraud statute. Indeed, both courts have passed on the opportunity to propound such a test. See RJR Nabisco , 764 F.3d at 141 ("We need not now decide precisely how to draw the line between domestic and extraterritorial applications of the wire fraud statute...."); RJR Nabisco , 136 S.Ct. at 2105 (reversing and remanding without providing guidance on the domestic reach of the wire fraud statute). Therefore, to determine the domestic reach of the wire fraud statute in the absence of a specific test, the Court must "look[ ] to the statute's focus," and "[i]f the conduct relevant to the statute's focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory." RJR Nabisco , 136 S.Ct. at 2101.

In the February 7, 2017 order, the Court observed that the Supreme Court's decision in RJR Nabisco , and the Second Circuit's decision in Petroleos Mexicanos , provide guideposts in determining the domestic reach of the wire fraud statute. Relying on the Supreme Court's decision in RJR Nabisco , the Court rejected Napout's argument that the wire fraud statute can be applied "domestically" only if the relevant fraud scheme has its focus in the United States. Hawit , 2017 WL 663542, at *5. At the same time, relying on the Second Circuit's decision in Petroleos Mexicanos , which held that "three minimal contacts" with the United States were insufficient to establish a domestic application of the wire fraud statute, 572 Fed.Appx. at 61, the Court expressed skepticism of the government's position that "nothing more" than a single transmission across U.S. wires is sufficient to establish a domestic application of the wire fraud statute. Hawit , 2017 WL 663542, at *5. Ultimately, without propounding a general test for the domestic reach of the wire fraud statute, the Court held that the government had adequately alleged domestic wire fraud as to Napout, "regardless of whether the correct test is the bright-line test proposed by the Government or the more holistic analysis implied by Petroleos Mexicanos . " Id.

During the trial, the government presented extensive evidence of the domestic conduct involved in the wire fraud conspiracies alleged in the S-2 indictment. As summarized in the government's brief, the government presented evidence that Napout and/or his co-conspirators met in the United States in furtherance of the charged conspiracies, maintained bank accounts in the United States to pay and receive bribes in connection with the Copa Libertadores and the Copa America tournaments in particular, maintained businesses in the United States that were used to further the charged conspiracies, and used the United States' financial system to clear U.S. dollar transactions involved in the charged conspiracies. (See Govt. Br. at 14-16.) In addition, with respect to the Copa Libertadores scheme (Count Two), the government presented evidence that Napout and his co-conspirators aimed to generate profits from the sale of broadcasting and other commercial rights in the United States specifically. (Tr. 180-183, 373-374, 481-483.) Further, with respect to the Copa America scheme (Count Six), the government presented evidence that Napout and his co-conspirators conspired to make and receive bribe payments in connection with a soccer tournament that would be played and broadcasted in the United States. (Tr. 2522-2525, 2539-40.)

Toward the end of the government's case in chief, the Court distributed to the parties proposed jury instructions. In describing the elements of wire fraud, the draft instructions addressed the extraterritoriality issue as follows:

It is not necessary that all or most of the wire communications involved in the alleged scheme to defraud were sent to, from, or within the United States. However, for the wire-use element to be satisfied, the scheme to defraud must make substantial use of wire communications that pass between two or more states or it must pass between the United States and a foreign country.

(Dkt. 847 at 45.) Thereafter, in a charge conference, the Court revised this section of the proposed charges by replacing the phrase "substantial use" with the phrase "more than minimal use." (Tr. 4177.) Thus, the final instructions to the jury stated, in relevant part:

It is not necessary that all or most of the wire communications involved in the alleged scheme to defraud were sent to, from, or within the United States. However, for the wire-use element to be satisfied, the scheme to defraud must make more than minimal use of wire communications that pass between two or more states or between the United States and a foreign country.

(Tr. 4611.)

At no time did Napout object to the Court's proposed instructions concerning the domestic contacts required to prove a domestic wire fraud conspiracy. (See, e.g. , Tr. 4177-4179.) Nor does Napout argue now that the evidence at trial failed to meet the domestic nexus requirement described in the instructions given to the jury. Instead, in his motion for a judgment of acquittal, Napout argues that a different legal standard than the one charged to the jury should be applied to determine whether the evidence was sufficient to sustain a domestic application of the wire fraud statute. Specifically, Napout asks, for the first time, that the Court apply the test for domestic wire fraud adopted by the Honorable Nicolas G. Garaufis in United States v. Gasperini , No. 16-cr-441 (NGG), 2017 WL 2399693 (E.D.N.Y. June 1, 2017). There, the court followed two district courts in holding that a "domestic" application of the wire fraud statute has three requirements: "(1) a defendant or coconspirator commits a substantial amount of conduct in the United States, (2) the conduct is integral to the commission of the scheme to defraud, and (3) at least some of the conduct involves the use of U.S. wires in furtherance of the scheme to defraud." Id. at *8 (citing United States v. All Assets Held at Bank Julius , 251 F.Supp.3d 82 (D.D.C. 2017), and United States v. Prevezon Holdings, Inc. , 122 F.Supp.3d 57, 71-72 (S.D.N.Y. 2015) ). Napout argues that, under this test for the domestic scope of the wire fraud statute, the evidence introduced at trial was insufficient to support his wire fraud convictions.

The Court finds that Napout's arguments under Gasperini are without merit for two reasons. First, Napout's claim that the evidence at trial was insufficient to sustain a domestic application of the wire fraud statute is based on a legal standard that was neither articulated to the jury, nor asserted by Napout before or during his trial. Had Napout wanted to instruct the jury to apply the three-part Gasperini test for domestic wire fraud, he was required to object to the Court's instruction before the jury was charged and to notify the Court of the Gasperini decision-neither of which Napout did. Napout cannot now launch a backdoor attack on the Court's jury instructions in the form of a Rule 29 motion challenging the sufficiency of evidence. Second, as the government demonstrated in its opposition brief, the evidence presented at trial was more than sufficient to satisfy the three-part test set forth in Gasperini . As summarized above and in the government's brief (Govt. Br. at 14-18), in furtherance of the Copa Libertadores and Copa America schemes, Napout and his co-conspirators met in the United States, maintained bank accounts in the United States, maintained businesses in the United States, transmitted and received bribe payments through the United States, and targeted broadcasting audiences in the United States. Under the three-part test in Gasperini , these domestic contacts constituted (1) a substantial amount of conduct in the United States, which was (2) integral to the commission of the bribe conspiracies in question, and (3) involved more than a de minimis use of the U.S. wires. 2017 WL 2399693, at *8.

Accordingly, the Court rejects Napout's contention that the evidence was insufficient to sustain his wire fraud conviction.

b. Racketeering Conspiracy (Count One)

Under the Supreme Court's decision in RJR Nabisco , the federal racketeering statute, 18 U.S.C. § 1962, "appl[ies] extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise." Hawit , 2017 WL 663542, at *9 (quoting RJR Nabisco , 136 S.Ct. at 2105 ). In this case, the government alleged and argued that the racketeering conspiracy charged against Napout was based on predicate acts of wire fraud conspiracy (applied domestically) and money laundering conspiracy (applied extraterritorially). Given these predicate acts, Napout argues that the evidence was insufficient to sustain his conviction for racketeering conspiracy because (i) Napout was acquitted of all charges of money laundering conspiracy (Counts Three and Seven), and (ii) Napout's convictions for wire fraud conspiracy were based on an impermissible extraterritorial application of the wire fraud statute. (Napout R29 Br. at 15-16.) As discussed above, the Court has held that Napout's convictions for wire fraud conspiracy were based on a domestic application of the wire fraud statute, thereby undercutting an essential premise of Napout's argument as to the extraterritorial reach of the racketeering statute. Accordingly, the Court also rejects Napout's argument about the extraterritorial application of RICO.

For these reasons, the Court denies Napout's motion for a judgment of acquittal.

C. Napout's Motion for a New Trial

Napout also moves for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on (1) purported errors in the Court's evidentiary rulings before and during trial, and (2) alleged "newly discovered evidence." (Napout R33 Br.)

1. Purported Evidentiary Errors

Napout contends that the Court made four erroneous evidentiary rulings that, either individually or in combination, make it a manifest injustice to allow Napout's convictions to stand. The Court addresses each of these alleged errors in turn.

a. Evidence of Foreign Law

In the more than one year of discovery in this case, neither Napout nor his co-Defendants gave notice under Federal Rule of Criminal Procedure 26.1 of an intention to raise an issue of foreign law at trial. In pretrial motions, the government, although not required to do so, sought an in limine order precluding Defendants from presenting evidence or argument about foreign law, including the law concerning commercial bribery in the various countries where Defendants worked and resided during the time period of the indictment. That motion prompted Defendants to argue, for the first time in the case-days before the start of trial-that they should be permitted to introduce evidence of foreign law at trial. As previously discussed, after initially precluding evidence and argument about foreign law under FRE 401 and FRE 403 (Hr'g Tr. 90-91, Nov. 8, 2017), the Court sua sponte revisited the issue while the government was still presenting its case in chief, and instructed Defendants to proffer the specific evidence concerning foreign law that they sought to introduce. (Tr. 2620-2622.) At a hearing held on December 8, 2017, the Court ruled that the specific foreign-law evidence proffered by Defendants was inadmissible under FRE 401 and FRE 403, but clarified that if any Defendant chose to testify at trial, he would not be precluded from testifying as to his beliefs about foreign law and how those beliefs informed his understanding of the duties he owed to FIFA or another relevant soccer organization. No Defendant testified during the trial or proffered any additional evidence of foreign law beyond the forms of evidence deemed inadmissible during the December 8, 2017 hearing.

In his motion for a new trial, Napout argues that the Court erred in precluding him from presenting evidence to prove that "commercial bribery" and "personal payments" are legal in both Paraguay and Argentina. (Napout R33 Br. at 4-6.) Napout argues that the Court should have made a judicial determination as to whether the laws of Paraguay and Argentina prohibited commercial bribery and personal payments, and the Court should have allowed Napout to "elicit from witnesses with whom Mr. Napout had business dealings whether they had conducted their business[ ] affairs as they did because they had believed that doing so was legal under Paraguayan or Argentinian law." (Id. at 6.) Had the Court allowed such a determination and inquiry, Napout argues, the jury could have concluded that Napout lacked the criminal intent to join any of the charged conspiracies because he believed that the personal payments underlying those conspiracies were legal under Paraguayan or Argentinian law. (Id. )

In making this argument, Napout relies once again on the Second Circuit's decision in United States v. Schultz , 333 F.3d 393 (2d Cir. 2003). Napout contends that the Court should have permitted Napout to use the "method" of proof permitted in Schultz to prove the contents of foreign law, and should have permitted Napout to elicit testimony from his associates to rebut the government's proof of Napout's criminal intent. (Napout R33 Br. at 6.) As the Court has previously explained, however, the Schultz court's treatment of foreign law does not extend to the specific facts and charges at issue in this case. Napout II , 2017 WL 6375729, at *10-11 (summarizing the relevant holdings of Schultz and addressing the same arguments that Napout now makes under Schultz ); see Schultz , 333 F.3d 393 (finding foreign law relevant because defendant's knowledge of foreign law was a required element of the charged crime). Accordingly, for the reasons stated in the December 12, 2017 order, the Court finds no error in its decision not to hold an evidentiary hearing to determine the contents of Paraguayan, Argentinian, or any other foreign country's laws, and also finds no error in its exclusion of the specific foreign-law evidence that Napout proffered for admission at trial.

b. Purported Work Product

During its investigation of this case, the government executed a search warrant for, and obtained electronic records from, a Hotmail account used by Napout. (Hr'g Tr., Nov. 9, 2017.) Among the records the government obtained from that Hotmail account were two electronic files containing a written record of "WhatsApp" text message communications between Napout and Burzaco, from June and July 2014. At trial, Napout moved to exclude the WhatsApp text messages on the ground that they were protected by the work product doctrine. (Dkt. 786.) Napout asserted that the WhatsApp text messages were protected from disclosure because the copies of those messages that were obtained by the government were preserved in Napout's Hotmail account only because he had sent a copy of the messages to his attorneys, at their request and in anticipation of litigation. (Id. )

After holding a sealed hearing with Napout, his attorneys, and the government's privilege team, the Court issued an order, dated November 11, 2017, denying Napout's motion to exclude the messages. (Dkt. 796.) In brief, the Court ruled that work product protection did not extend to the WhatsApp messages because the original messages themselves were not created at the behest of an attorney or in anticipation of litigation, and Napout's transmission of those messages to his attorneys did not render the documents privileged or work product. (Id. at 8-11 (citing United States v. Walker , 243 Fed.Appx. 621, 623 (2d Cir. 2007) ("[P]utting otherwise non-privileged ... records ... in the hands of an attorney-or printing out such records for an attorney to review-does not render the documents privileged or work product.") ).)

In his motion for a new trial, Napout argues that the Court erred in allowing the government to introduce a copy of the WhatsApp text messages over his assertion of work product protection. (Napout R33 Br. at 7; GX 976 (WhatsApp messages).) Napout further argues that the government, in its closing argument to the jury, unfairly "exploited" those WhatsApp text messages by arguing that they demonstrated a "trusting" relationship between Burzaco and Napout, which bolstered the government's theory that Burzaco and Napout were co-conspirators. (Napout R33 Br. at 7.)

In support of this argument, Napout merely incorporates by reference the arguments he made in his letter briefing during trial (Dkt. 786), which the Court examined in detail and rejected in its November 11, 2017 order (Dkt. 796). Napout does not offer any additional argumentation on this front, and the Court finds no error in its holding that the WhatsApp messages were not protected by the work product doctrine. Accordingly, for the reasons stated more fully in its November 11, 2017 order (Dkt. 796), the Court finds no error in allowing the government to present the WhatsApp messages to the jury and argue that they, inter alia , showed a relationship of trust between Burzaco and Napout.

c. The "Obstruction" Evidence

As previously discussed, by order dated October 17, 2017, the Court ruled that the government, subject to specific objections at trial, would be permitted to present evidence that Napout and alleged co-conspirators engaged in obstruction of justice to conceal their criminal conduct. See Napout I , 2017 WL 4685089, at *3-7. Among other things, the Court ruled that the government could introduce evidence concerning "the removal of electronic devices from Napout's CONMEBOL office, at Napout's direction, on the morning of Napout's December 3, 2015 arrest in Zurich, Switzerland and the subsequent recovery and search of those devices by U.S. law enforcement." Id. at *2-7. The Court ruled that evidence in this category was generally admissible, both as evidence of the existence of a RICO conspiracy, as well as evidence of Napout's "consciousness of guilt," except that, to the extent the government sought to introduce this evidence to prove the existence of a RICO conspiracy, the government would also need to submit evidence that at least one person involved in the obstruction, other than Napout, was a member of the charged conspiracy prior to the alleged obstruction. Id. at *5-7 & n.7. The Court also ruled that evidence in this category was not unduly prejudicial, because the "acts of obstruction are really no different than Defendants' alleged acts of bribery, wire fraud, and money laundering: they all involve non-violent acts of dishonesty, deceit, and concealment." Id. at *7.

In his motion for a new trial, Napout contends that the government unfairly exploited the Court's pre-trial order permitting the introduction of evidence concerning the removal of Napout's computer from his CONMEBOL office. Specifically, Napout claims he was prejudiced by the government's repeated reference, during its summation, to the computer that was "stolen" from Napout's office. (Napout R33 Br. at 8-9; Napout R33 Reply Br. at 4-5.) According to Napout, the government's use of the phrase "stolen computer" to describe the computer removed from Napout's office was unfair because, although the government had obtained the Court's conditional approval to introduce evidence of obstruction, the government "utterly failed to prove that which it had proffered to the Court" before trial. (Napout R33 Br. at 8.) Thus, Napout argues, "[t]he government ... obtained the benefit of selling alleged wrongdoing [to the jury] without any actual basis to link Mr. Napout to any wrongdoing." (Napout R33 Reply Br. at 5.)

Before addressing the merits of Napout's argument, the Court notes several limitations on the "obstruction" evidence that were observed by the government at trial. First, consistent with the Court's pre-trial order concerning obstruction evidence, the government did not argue that the removal of Napout's computer from his CONMEBOL office was evidence of the racketeering conspiracy, Napout's involvement in the racketeering conspiracy, or the commission of a predicate act of racketeering conspiracy. Rather, in summation, and in keeping with the Court's pre-trial order, the government argued to the jury that the removal of Napout's computer-which contained photographs of Napout with central members of the alleged racketeering conspiracy-reflected "a consciousness of guilt, that is to say, somebody who may want to argue[:] I don't really know the [alleged co-conspirators], those are business people, ... how would I get cash from the [alleged co-conspirators], these are not people I'm close to." (Tr. 4531-4532.) In other words, despite the Court's grant of conditional permission to introduce the obstruction evidence for several purposes, the government ultimately used the obstruction evidence solely as "other acts" evidence pursuant to FRE 404(b) to show Napout's consciousness of guilt.

With this as background, the Court considers Napout's objection to the government's use of the obstruction evidence to argue Napout's "consciousness of guilt." In essence, Napout argues that the evidence introduced at trial was insufficient to show that Napout "had a role" in the removal of his computer from the CONMEBOL office. According to Napout, in the absence of evidence linking Napout to the removal of the computer, the government should not have been permitted to argue "consciousness of guilt" in summation, and the Court should not have given a consciousness-of-guilt instruction to the jury. (Napout R33 Reply Br. at 4-5.)

Having reviewed the obstruction evidence introduced at trial, the Court finds no error or unfair prejudice stemming from the government's summation or the Court's instruction to the jury concerning Napout's consciousness of guilt. The evidence at trial was more than sufficient to conclude, by a preponderance of evidence, that Napout was involved in the removal of his computer from his CONMEBOL office. Nelson Sanabria, one of Napout's executive assistants at CONMEBOL, testified that, a month or two before Napout was arrested in Zurich, Switzerland, Napout's senior assistant informed Sanabria of a plan to remove Napout's computer from his CONMEBOL office in the event Napout was arrested. (Tr. 3121-3124.) Sanabria explained that, "in case Mr. Napout was arrested, [a CONMEBOL attorney] would go get [Napout's] computer at the office," and that Sanabria was "to give [the attorney] access [to the office] if that happened." (Tr. 3122-23.) On December 3, 2015, no more than a few hours after Napout was arrested, Sanabria received a phone call from a CONMEBOL attorney instructing him to go immediately to the CONMEBOL office. (Tr. 3124.) Two CONMEBOL attorneys joined Sanabria at the office, and one of them asked Sanabria to unlock the door to Napout's office, so that Napout's computer could be removed. (Tr. 3124-3125.) To avoid detection by an office security camera, one of the attorneys covered Napout's computer with his jacket and removed it from the office. (Tr. 3126-3127.) As the attorneys left the CONMEBOL office with the computer, one of them told Sanabria that the computer was being removed because Napout was afraid that photographs on the computer of his family "might be leaked" if the computer was not removed. (Tr. 3127.) The next day, a different computer was placed on Napout's desk, seemingly to conceal the removal of Napout's work computer. (Id. ) Eventually the government came into possession of the computer that was removed and found, among other things, numerous photographs of Napout with his alleged coconspirators, including two co-conspirators, Hugo and Marian Jinkis, who, according to the government's trial witnesses, were responsible for delivering cash bribe payments to Napout. (Tr. 3205-3212.) Given this timeline of events, there was more than a preponderance of evidence to find that Napout had a role in the removal of his computer from his CONMEBOL office.

Moreover, even if the Court erred in allowing the government to argue Napout's consciousness of guilt based on the removal of his computer from the CONMEBOL office, any such error would not constitute the kind of "manifest injustice" required to warrant a new trial. In general, "a motion for a new trial 'should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.' " Smith , 316 F.3d at 183 (quoting Atkins , 143 F.3d at 102 ). Viewed in context of the other inculpating evidence introduced against Napout-including testimony about Napout's agreement to receive bribes and about the delivery of bribe money to him, as well as ledgers maintained by co-conspirators documenting the bribes paid to Napout-the evidence concerning the removal of Napout's computer from his CONMEBOL office carried minimal threat of unfair prejudice. Most importantly, Napout was free to argue, as he did, that there was no direct evidence that he had ordered the removal of his computer, and that, even if Napout had expressed a concern about the government obtaining his computer (as Sanabria testified), he did so only because he wanted to protect his family photographs from being leaked. (Tr. 4364.) Indeed, Napout's counsel offered into evidence photographs of Napout's family that were stored in the computer, including a photograph of his daughter in a bathing suit. (Tr. 3178-3182.) Thus, the jury was aware of, and well equipped to evaluate, the government's argument that Napout was involved in the removal of his computer and the motives for having the computer removed. Furthermore, in the Court's assessment, the fact that Napout's computer was removed from his CONMEBOL office was far less significant, in terms of evidence of Napout's guilt, than the contents of the computer itself. As noted above, the computer contained, among other things, numerous photographs of Napout and alleged co-conspirators who were at the heart of the bribery conspiracy described by other government witnesses throughout the trial. Napout did not claim, and does not claim now, that those photographs and the other contents of his computer were inadmissible. Thus, even if the circumstances surrounding the removal of the computer should not have been admitted, the computer's contents would nonetheless have been admitted to bolster the government's argument about Napout's close association with the alleged co-conspirators in the bribery scheme. For these additional reasons, even if there was error in allowing the government to present evidence concerning the removal of Napout's computer as "consciousness of guilt," that error would not warrant a new trial.

2. "Newly Discovered Evidence"

Napout also moves for a new trial on the ground that he has discovered new evidence that entitles him to a new trial pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or, alternatively, because the newly discovered evidence "would likely [have] result[ed] in an acquittal," United States v. Owen , 500 F.3d 83, 88 (2d Cir. 2007).

a. Napout's "Newly Discovered" Evidence

Napout's argument about "newly discovered" evidence relates to testimony given by cooperating witness Alejandro Burzaco, one of the government's key witnesses against Napout. On November 15, 2017, the third day of the government's case in chief, Burzaco testified that he attended a CONMEBOL board meeting in October 2014 in Asuncion, Paraguay, where, among other things, he spoke with Napout about bribe payments in exchange for media contracts. (Tr. 568-576.) In the course of giving that testimony, Burzaco also mentioned that he had traveled to Asuncion at that time with Luis Segura, the president of the Argentinian soccer federation. (Tr. 566.)

According to Napout, before Burzaco testified in trial, Napout had no way of knowing that Burzaco would tell the jury that he had traveled to the October 2014 CONMEBOL meeting with Luis Segura. Napout contends that when Burzaco testified that he had traveled to Asuncion with Segura for the October 2014 CONMEBOL meeting, Napout's counsel "undertook an investigation" as to the veracity of Mr. Burzaco's assertion that he spoke with Napout about bribe payments in Asuncion, Paraguay around the time of the October 2014 CONMEBOL meeting. (Napout R33 Br. at 10.) Napout does not provide details on the "investigation" his counsel conducted, but his post-trial submission shows that, on December 5, 2017 (three weeks after Burzaco testified about his trip to Asuncion), Napout submitted a request to a Paraguayan immigration authority for all immigration records associated with Alejandro Burzaco's entries into Paraguay during 2014. (Napout R33 Br., Ex. A.) One day later, on December 6, 2017, Napout received a written response from the Paraguayan immigration authority, which indicated that Burzaco entered into Paraguay on December 3, 2014, but that "no [other] immigration data was recorded" for Burzaco in 2014. (Id. ) Thereafter, "an exhaustive and painstaking search of Paraguayan airport records" was conducted, which ultimately revealed flight manifests showing private flights taken by Luis Segura on October 24, 2014, into and out of Asuncion, Paraguay. (Napout R33 Br. at 10.) Burzaco is not listed on those flight manifests. (Napout R33 Br., Ex. B.)

According to Napout, the absence of Burzaco's name on the flight manifests shows that Burzaco was lying when he told the jury that he had traveled to the October 2014 CONMEBOL meeting with Segura. (Napout R33 Br. at 10-11.) Napout argues that, had the jury seen the immigration records and flight manifests showing that Burzaco lied about his trip to Asuncion, the jury would have discredited Burzaco's testimony that he spoke with Napout in Asuncion about the bribery schemes. Napout further contends that Napout would not have been convicted if Burzaco had been impeached with the immigration records and flight manifests during trial. (Id. at 14.)

b. The Government Did Not Commit a Brady Violation

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the [government], either willfully or inadvertently; and prejudice must have ensued." Poventud v. City of New York , 750 F.3d 121, 133 (2d Cir. 2014) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 2