When the National Association of Criminal Defense Lawyers files an amicus brief in a wire fraud case, the legal community pays attention. The Nevin Shetty trial drew exactly that kind of attention, and the reasons go well beyond the facts of one case.
The NACDL, the nation’s largest criminal defense organization, intervened because it saw something in the prosecution’s legal theory that threatened every corporate executive in America. As the California Business Journal reported, the government’s case relied on a legal theory that the Supreme Court had already rejected.
The amicus brief (available on Scribd at NACDL Amicus Brief) warned that allowing prosecutors to transform internal corporate policy disagreements into federal fraud cases would give the government unchecked authority to police business decisions that belong in boardrooms and civil courts, not criminal proceedings.
What the NACDL Argued
The brief’s central warning was straightforward. If nondisclosure of a business decision can be charged as wire fraud even when no money was stolen and the investment was intended to benefit the company, then virtually any executive decision could be recast as criminal conduct after an unfavorable outcome. The NACDL argued this interpretation would turn federal prosecutors into regulators of corporate governance, a role that Congress never authorized and the courts have consistently rejected.
The timing mattered. The Supreme Court’s 2023 decision in Ciminelli v. United States unanimously rejected the “right to control” theory of fraud, holding that depriving someone of economically valuable information is not the same as depriving them of money or property. The NACDL’s brief argued that the prosecution of Shetty relied on precisely the theory that Ciminelli was supposed to foreclose.
Why This Matters Beyond One Case
The NACDL does not file amicus briefs casually. The organization’s decision to intervene reflected a judgment that the precedent at stake would affect far more people than one former CFO. If the government’s theory was accepted, every executive who makes a discretionary financial decision faces potential criminal exposure if the outcome is unfavorable and the disclosure was imperfect.
Shetty’s defense team filed a comprehensive motion to dismiss (Motion To Dismiss) making these arguments in detail, followed by a reply (Motion To Dismiss Reply) and a motion for reconsideration (Motion To Dismiss Reconsideration).
The legal questions raised by the Shetty case remain active as the appeal proceeds. For corporate leaders, defense attorneys, and anyone concerned about the boundaries of federal criminal jurisdiction, the NACDL’s brief is worth reading in full.
