## Facts

- Armand P. D’Amato, a New York attorney, was retained by a Unisys Corporation employee to perform services connected to Unisys’s federal-government business.
- The government alleged D’Amato’s “actual services” included lobbying his brother, a United States Senator, while D’Amato’s billings were structured to obscure the nature of that relationship from those controlling corporate funds.
- The prosecution pursued two mail-fraud theories: (1) concealment depriving Unisys of its “right to control” assets by withholding material information about the services; and (2) contracting to provide written reports on Senate proceedings without intending to provide them.
- The government introduced evidence suggesting the Unisys employee sought access to the Senator through D’Amato and that internal Unisys materials criticized unethical practices.
- The record did not include proof that D’Amato knew the Unisys employee lacked authority to direct billing or retain him, that the payments were unlawful, or that the employee personally benefited from the arrangement.

## Issues

1. Whether the evidence was sufficient for a rational jury to find beyond a reasonable doubt that D’Amato possessed fraudulent intent, an essential element of mail fraud under 18 U.S.C. § 1341.
2. Whether the evidence supported the government’s right-to-control and false-pretenses theories by showing that D’Amato contemplated actual economic harm or injury to Unisys.

## Decision

- The court reversed the judgment of conviction and ordered the indictment dismissed.
- The evidence was insufficient to prove fraudulent intent under either the right-to-control theory or the false-pretenses theory.
- The government’s proof required impermissible speculation rather than reasonable inferences grounded in evidence.

## Legal Principles

- Mail fraud under 18 U.S.C. § 1341 requires proof of a scheme to defraud, and a scheme to defraud requires fraudulent intent.
- Although actual loss need not occur, the government must prove the defendant contemplated actual harm or injury to the victim.
- On sufficiency review, the evidence is viewed in the light most favorable to the government, but a conviction cannot rest on speculation or on evidence equally consistent with innocence as with guilt.
- A breach of contract is not mail fraud absent proof that, at contract formation, the defendant intended not to perform or intended to deceive about a material aspect of the bargain.
- A right-to-control theory requires evidence supporting an intent to deprive the victim of economically valuable information relevant to the victim’s discretionary use of assets.

## Conclusion

The Second Circuit vacated D’Amato’s mail-fraud convictions because the government failed to present evidence permitting a rational finding that he intended to defraud Unisys or contemplated economic harm, under either an alleged deprivation of Unisys’s right to control its assets or an alleged false promise to provide legislative reports.


United States v. D’Amato, 39 F.3d 1249 (2d Cir. 1994)