## Facts

- Christopher Finazzo, a merchandising executive at Aéropostale, caused the company to buy apparel from South Bay, a vendor controlled by Douglas Dey.
- Finazzo secretly received portions of South Bay’s profits, which he did not disclose to Aéropostale.
- The prosecution theory was that concealment of the conflict and profit-sharing deprived Aéropostale of material information needed to make informed economic decisions.
- A key item at trial was an email from Finazzo’s personal attorney to Finazzo that was sent to Finazzo’s Aéropostale email account and discussed Finazzo’s assets and interests connected to South Bay.
- Aéropostale maintained a computer-use policy stating employees had “no expectation of privacy” in company email accounts.
- The district court admitted the attorney email after finding it was not protected by attorney–client privilege.
- A jury convicted Finazzo of conspiracy (including mail and wire fraud objects) and substantive mail and wire fraud; the court imposed imprisonment, forfeiture, and restitution (with restitution imposed jointly and severally on Finazzo and Dey).

## Issues

1. Whether an attorney email sent to and received through an employer email account subject to a “no expectation of privacy” policy is protected by attorney–client privilege.
2. Whether the district court erred in giving a “no ultimate harm” instruction regarding fraudulent intent.
3. Whether the district court committed reversible error in excluding certain defense expert testimony and in other challenged evidentiary and procedural rulings.
4. Whether restitution could be calculated using the defendant’s gain as a proxy for the victim’s loss, and whether forfeiture was otherwise valid.

## Decision

- The Second Circuit affirmed Finazzo’s convictions and sentence.
- The court held the attorney email was not protected by attorney–client privilege because use of the monitored company email system defeated reasonable confidentiality.
- The court rejected challenges to the “no ultimate harm” instruction, concluding it did not reduce the government’s burden to prove intent and was supported by the record.
- The court found no reversible error in the exclusion of defense expert testimony and other contested trial rulings, emphasizing the trial court’s discretion over evidentiary matters.
- The court upheld forfeiture and rejected the claim that it was unconstitutionally excessive.
- The court vacated and remanded the restitution order because restitution must reflect the victim’s actual loss and could not be set by simply using Finazzo’s gain.

## Legal Principles

- Attorney–client privilege protects only communications made with a reasonable expectation of confidentiality; using a work email account subject to an express “no expectation of privacy” policy may defeat that expectation and prevent privilege from attaching.
- A “no ultimate harm” instruction is permissible where it clarifies that a belief the victim would not suffer net harm (or might benefit) does not negate fraudulent intent when the scheme involves deceit intended to interfere with the victim’s control of its assets.
- District courts have broad discretion over admission and exclusion of expert testimony and other evidence; reversal requires a showing of prejudicial error.
- Restitution must be based on the victim’s actual loss; forfeiture may be measured by the defendant’s gain, and the two remedies require distinct calculations.

## Conclusion

The Second Circuit left the fraud convictions and forfeiture intact and rejected challenges to trial rulings, including admission of an attorney email sent through a monitored company account, but required a remand because restitution must be recalculated using the victim’s loss rather than the defendant’s gain.


United States v. Finazzo, 682 F. App’x 6 (2d Cir. 2017)