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?

2. Is the strand of property rights known as the
"right to control property" sufficiently "property" within
the meaning of the fraud statutes given that this Court
rejected the suggestion in Cleveland, Skilling and Sekhar?

Is a trial lawyer constitutionally ineffective when he embraces a legal argument directly contrary to existing circuit law?