author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Paul ARLINE, AKA Face, et al., Defendants, Anthony Boykin, AKA Double O, Justin Simmons, AKA Justo, Defendants-Appellants.

    Docket Nos. 14-851-cr; 14-1033-cr
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: April 25, 2016
    Decided: August 30, 2016

      BenjamiN Greenwald, The Law Office of Benjamin Greenwald, New Windsor, New York, for Defendant-Appellant.
    Miohael D. Maiman, Assistant United States Attorney (Emil J. Bove, III, Michael A. Levy, Assistant United States Attorneys, on the brief), for Preet Bhar-ara, United States Attorney for the Southern District of New York, for Appellee.
    Before: Walker, Calabresi, Hall, Circuit Judges.

       The Clerk of Court is requested to amend the official caption in this case to conform to the listing of the parties above,

   PER CURIAM:

Following a jury trial, Defendant-Appellant Justin Simmons was convicted of participating in a racketeering enterprise and conspiracy, in violation of 18 U.S.C. §§ 1961, 1962(c) and (d), and a narcotics conspiracy, in violation of 21 U.S.C. § 846. He was also convicted of two counts of possession of a firearm in furtherance of a crime of violence or drug trafficking crime, in violation of 18 U.S.C. § 924(c): one for possession of a firearm in furtherance of the racketeering enterprise and conspiracy and the other for possession of a firearm in furtherance of the narcotics conspiracy. The district court sentenced Simmons to a five-year term of imprisonment for one of the § 924(c) convictions. Pursuant to § 924(c)(1)(C) — which provides for a mandatory minimum of twenty-five years’ imprisonment for a “second or subsequent” conviction under § 924(c) — the court sentenced Simmons to a twenty-five-year term of imprisonment for the second § 924(c) conviction, each to run consecutively to the other and to the sentences imposed for the racketeering and narcotics convictions, for a total term of fifty years’ imprisonment.

On appeal, Simmons argues, with respect to that part of his sentence based on the firearms convictions, that (1) the fact of whether he had a “second or subsequent” § 924(c) conviction should have been determined by the jury, and (2) one or the other of his convictions under § 924(c) was multiplicitous because they involved potentially overlapping conduct. For the following reasons, the judgment is AFFIRMED.

BACKGROUND

In 2013, Simmons was charged with multiple offenses stemming from his involvement with the Bloods gang operating out of Newburgh, New York (“Newburgh Bloods”). Count One charged him with participating in a racketeering enterprise, in violation of 18 U.S.C. §§ 1961 and 1962(c), and set forth six racketeering acts, all of which related to murder, attempted murder, or robbery, except for predicate act five, which consisted of a narcotics distribution conspiracy. Count Two charged Simmons with participating in a racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). The conduct underlying both Counts One and Two was alleged to have occurred “[f|rom at least in or about 2006, up to and including in or about March 2013,” App’x 256, 263. Count Twelve charged Simmons with participating in a conspiracy to distribute and possess with intent to distribute 280 grams or more of a controlled substance, in violation of 21 U.S.C. § 846, “[f]rom at least in or about 2004, up to and including in or about September 2011.” App’x 274.

Simmons was also charged with two counts of violating § 924(c). Count Thirteen charged Simmons with using and carrying firearms during and in relation to, and possession of firearms in furtherance of, the narcotics conspiracy described in Count Twelve, [f|rom at least in or about 2004, up to and including in or about September 2011.” App’x 275. Count Seventeen charged him with using and carrying firearms during and in relation to, and possession of firearms in furtherance of, a crime of violence, namely, the racketeering enterprise and conspiracy charged in Counts One and Two, but “on occasions other than those described” in Count Thirteen (among other counts). App’x 277-78.

At trial, the Government introduced evidence connecting Simmons to numerous firearms. With respect to the firearms possessed in conjunction with the racketeering enterprise and conspiracy, the jury heard testimony that Simmons was in possession (or aided in the possession) of a gun on three occasions: (1) when he and another member of the Newburgh Bloods were arrested in January 2008 while driving through the neighborhood of a rival gang; (2) when Simmons passed along one of his guns to a fellow Newburgh Blood in 2009; and (3) when Simmons was on Lander St. in Newburgh with a fellow member of the Newburgh Bloods.

As for the firearms possessed in connection with the narcotics conspiracy, the Government offered testimony that numerous guns were hidden in a neighborhood block located on Lander St. in Newburgh where the Newburgh Bloods sold crack cocaine. These so-called “block guns” were to be used when “needed,” Trial Tr. 250, and were kept for “protection” from “other gangs” in the course of selling drugs, Trial Tr. 851. The jury heard testimony that Simmons was seen on Lander St. in possession of one of these block guns.

In its summation, the Government sought to link the firearms to the respective counts. Thus, the gun discovered on Simmons when he was arrested in January 2008, the gun he passed along in 2009, and the gun he possessed while out with a fellow blood on Lander St. were tied to the racketeering enterprise and conspiracy, while the block guns were connected to the narcotics conspiracy.

The district court instructed the jury that the firearms charge contained in Count Seventeen was “connected to the charges of racketeering and racketeering conspiracy,” Trial Tr. 2211, while the firé-arms charge in Count Thirteen was “connected to the narcotics conspiracy,” Trial Tr. 2210. Neither Simmons nor the Government asked the district court to instruct the jury that the guns in Count Seventeen were alleged to have been possessed on occasions different from those occasions forming the basis for Count Thirteen, and no such instruction was given.

At sentencing, the court sentenced Simmons to a five-year term of imprisonment for the § 924(c) conviction relating to the narcotics conspiracy and, pursuant to § 924(c)(1)(C), to a twenty-five-year mandatory minimum term of imprisonment for his § 924(c) conviction pertaining to the racketeering enterprise and conspiracy, each to run consecutively to the other and to the other sentences, for a total term of fifty years’ imprisonment. Simmons did not object to the court’s imposition of the twenty-five-year mandatory minimum for his conviction for a “second or subsequent” § 924(c) offense. This appeal followed.

DISCUSSION

I. The Fact of a “Second or Subsequent” Conviction under § 924(c)

Simmons contends that the fact of whether he had a “second or subsequent” § 924(c) conviction should have been found by the jury and the jury should have been charged accordingly. Because Simmons did not object on this basis to either the district court’s jury charge or to the sentence, we review for plain error. United States v. Vilar, 729 F.3d 62, 88 (2d Cir. 2013) (jury instructions); United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007) (sentencing). Plain error review permits relief only where (1) there is “error,” (2) the error “is plain,” (3) the error “affect[s] substantial rights,” and (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Groysman, 766 F.3d 147, 155 (2d Cir. 2014) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

The fact of a prior conviction may be decided by a judge and need not be determined by a jury. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)); see Almendarez-Torres v. United States, 523 U.S. 224, 243-48, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that a prior conviction relevant only to the sentencing of an offender found guilty of the charged crime is not a fact that must be charged in the indictment or found by a jury beyond a reasonable doubt). We have held that the existence of a “second or subsequent” § 924(c) conviction is a sentencing factor that need not be determined by a jury. United States v. Anglin, 284 F.3d 407, 409 (2d Cir. 2002) (per curiam) (holding that “the fact of [a] prior conviction [under § 924(c)], a standard recidivist concern, is a sentencing factor, not a separate element or offense” that must be submitted to a jury); United States v. Campbell, 300 F.3d 202, 212 (2d Cir. 2002) (observing that this Court “held [in Anglin] that the fact of a prior conviction is not an element of a § 924(c) offense”).

Simmons argues that Apprendi’s and Almendarez-Torres’s holdings on this issue are no longer good law because they did not survive the Supreme Court’s decision in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held that any fact increasing the mandatory minimum sentence is an element of the crime and must be found by the jury beyond a reasonable doubt, id. at 2155. Alleyne, however, has not altered the rule set forth in Apprendi and Almendarez-Torres that the fact of a prior conviction need not be determined by a jury. See Alleyne, 133 S.Ct. at 2160 & n.1 (declining to revisit the established rule that a judge not a jury may decide the fact of a prior conviction); United States v. Del Rosario, 561 Fed.Appx. 68, 69 (2d Cir. 2014) (unpublished) (observing that Alleyne left intact the rule that the fact of a prior conviction need not be submitted to the jury for determination, and that, “under controlling Supreme Court precedent, the fact of a prior felony conviction may be decided by a judge ... even if that fact increases the statutory minimum term of imprisonment to which the defendant is exposed”); accord United States v. King, 751 F.3d 1268, 1280 (11th Cir. 2014) (“Finding that a defendant’s convictions were ‘second or subsequent’ is the same as finding that a defendant had a prior conviction, and the issue remains governed by Almendarez-Torres [and unaltered by Alleyne].”); United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013) (concluding that Almendarez-Torres remains binding authority notwithstanding Alleyne and that a jury need not find a defendant’s convictions were “second or subsequent” under § 924(c)(l)(C)(I)). We are satisfied there is no reason to disturb our established case law on this issue.

II. Multiplicity of Simmons’s § 924(c) Convictions

We construe Simmons’s remaining arguments as asserting that the two § 924(c) convictions were multiplicitous, and, relat-edly, that it was error for the court to fail to instruct the jury that proof of the violations in Counts Thirteen and Seventeen needed to be based on separate conduct and error for the court implicitly at sentencing, rather than the jury, to find that the two § 924(c) convictions were based on separate conduct.

The issue of whether the two § 924(c) convictions were multiplicitous is a question of law, which we review de novo. United States v. Mejia, 545 F.3d 179, 204 (2d Cir. 2008); United States v. Wallace, 447 F.3d 184, 186 (2d Cir. 2006). As noted, because Simmons did not object to the district court’s jury charge or purported sentencing error, his challenge to each is reviewed for plain error. Vilar, 729 F.3d at 88; Villafuerte, 502 F.3d at 208.

A “second or subsequent” conviction under § 924(c) may be charged in the same indictment as the initial § 924(c) charge. Deal v. United States, 508 U.S. 129, 132-33, 113 S.Ct. 1993, 124 L.Ed.2d 44 1993; see United States v. Pierce, 785 F.3d 832, 846 (2d Cir. 2015) (observing that in Deal, “the Supreme Court clarified that a ‘second or subsequent conviction’ can arise when a defendant is charged with multiple violations of Section 924(c) in the same indictment or arising from the same proceedings,” meaning that “[o]ne of the convictions is treated as the first conviction and the others are treated as ‘second or subsequent’ ”). A “second or subsequent” conviction, however, may not be based on a single “unit of prosecution,” i.e., “[w]here the government links multiple firearms to a single crime,” United States v. Lindsay, 985 F.2d 666, 674 (2d Cir. 1993), or where a defendant is in “continuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct,” Wallace, 447 F.3d at 188 (quoting United States v. Finley, 245 F.3d 199, 207 (2d Cir. 2001)).

In support of his argument that the two convictions may have punished simultaneous conduct, Simmons points to the fact that the § 924(c) charge relating to the racketeering enterprise and conspiracy was linked to conduct occurring between 2006 and 2013 while the § 924(c) charge relating to the narcotics conspiracy was based on conduct that occurred between 2004 and September 2011, resulting in a temporal overlap of some 5 years. Simmons also observes that the racketeering enterprise charged in Count One included as a predicate act a narcotics.distribution conspiracy, while the racketeering conspiracy charged in Count Two alleged that the pattern of racketeering activity included, among other criminal acts, “dealing in a controlled substance.” According to Simmons, since one of his § 924(e) convictions was based on Counts One and Two, both of which included narcotics-related predicate acts, he may have been punished twice for the same conduct because his other § 924(c) conviction was based on Count Twelve, which alleged a substantive narcotics conspiracy. It was therefore possible, he argues, that the jury convicted him of two § 924(c) counts based on the same underlying criminal conduct. We conclude, however, that the two § 924(c) convictions were .not multiplicitous and identify no plain error in these circumstances.

The evidence showed that Simmons possessed (or aided and abetted the possession of) multiple firearms on separate occasions. Furthermore, in its summation, the Government distinguished between the firearms involved in the respective § 924(c) counts: the § 924(c) charge relating to the racketeering enterprise and conspiracy was based on possession of the firearm discovered on Simmons when he was arrested in January 2008, the firearm he passed along in 2009, and the firearm he possessed while out with a fellow Blood on Lander St.; the § 924(c) count based on possession of a firearm in connection with participation in the narcotics conspiracy was based solely on the block guns that were kept on Lander St. Thus, although these incidents may have occurred within the same five-year period — or even in the same month or year — the evidence at trial, and the Government’s presentation of that evidence and argument to the jury, demonstrated that the guns were neither linked “to a single crime,” Lindsay, 985 F.2d at 674, nor based on the “continuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct.” Wallace, 447 F.3d at 188 (quoting Finley, 245 F.3d at 207).

Given the evidence that Simmons possessed multiple firearms on separate occasions, we conclude that there was an ample basis for the jury to convict Simmons of two separate violations of § 924(c). See United States v. Salameh, 261 F.3d 271, 279 (2d Cir. 2001) (finding concerns about multiplicitous § 924(c) convictions unfounded “given the separate, and separately culpable, nature of defendants’ use and carriage of the [firearms]”); United States v. Malpeso, 115 F.3d 155, 170 (2d Cir. 1997) (rejecting challenge to two § 924(c) convictions where evidence “established that [defendant] carried guns on several occasions” throughout charged conspiracy, leaving “no realistic possibility” that the jury conviction on both counts was based on single event). That there was no jury instruction clarifying that the firearms subject of each § 924(c) charge must have been possessed on separate occasions does not amount to plain error. For the same reasons, it was not plain error for the district court to find implicitly at sentencing that the two § 924(c) convictions were based on separate conduct, thereby subjecting Simmons to mandatory minimum, consecutive sentences based on a “second or subsequent” § 924(c) conviction.

CONCLUSION

We have considered all of Simmons’s remaining arguments with respect to his sentencing and find them to be without merit. For the reasons stated above and in the accompanying summary order, the judgment of conviction is AFFIRMED.

      . Simmons also argues on appeal that the evidence was insufficient to convict him of participating in a racketeering conspiracy. We reject this argument and affirm that conviction in a separately filed summary order.

      . Both § 924(c) counts included charges that Simmons aided and abetted others in the commission of those firearms offenses.

      . To the extent Simmons argues that the district court was not permitted at sentencing to determine the separateness of his § 924(c) convictions, we disagree. We have held that "the separateness of convictions is not a fact which is different in kind from the types of facts already left to the sentencing judge by Almendarez-Torres and Apprendi.” United States v. Santiago, 268 F.3d 151, 153, 156 (2d Cir. 2001) (applying Almendarez-Torres and Apprendi to 18 U.S.C. § 924(e)(l)’s mandatory minimum prison term for defendants who have three previous convictions for a violent felony or serious drug offense “committed on occasions different from one another” (internal quotation marks omitted)); see United States v. Dantzler, 771 F.3d 137, 144 (2d Cir. 2014) (observing that "we held in Santiago that the question of separateness of predicate offenses is intertwined with the fact of conviction, and because a sentencing judge was authorized to find the fact of conviction under Almendarez-Torres and Apprendi, he could also find that such convictions were separate”).

      . It is conceivable that the racketeering-related gun alleged to have been possessed by Simmons on Lander St. — the same street where the block guns were kept — was one of the block guns that formed the basis of the narcotics-related § 924(c) charge. There were, however, two other guns that were also connected to the racketeering enterprise and conspiracy, neither of which had any apparent connection to the block guns.

      . We also note that the indictment alleged that the § 924(c) charge relating to the racketeering enterprise and conspiracy was based on firearms that were used or possessed "on occasions other than those described” in the § 924(c) charge relating to the narcotics conspiracy. App’x 277-78.


source: Caselaw Access Project

author: POOLER, Circuit Judge:

license: Public Domain

text:
    Trathony GRIFFIN and Michael Godwin, Plaintiffs-Appellants, v. SIRVA INC. and Allied Van Lines, Inc., Defendants-Appellees.
    Docket No. 15-1307
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: January 8, 2016
    Decided: August 30, 2016

      STUART LICHTEN, Lichten & Bright, P.C., New York, NY, for Plaintiffs-Appellants.
    GEORGE W. WRIGHT, George W. Wright & Associates, LLC, New York, NY, for Defendants-Appellees.
    Before: POOLER, HALL, and CARNEY, Circuit Judges.

      . The Clerk of Court is respectfully directed to amend the caption as above,

   POOLER, Circuit Judge:

This appeal presents the question of who may be held liable under Section 296(15) of the New York State Human Rights Law (“NYSHRL”), which prohibits the denial of employment on the basis of a criminal conviction. See N.Y. Exec. Law § 296(15). The plaintiffs are two former employees of Astro Moving and Storage Co. (“Astro”), which, as its name suggests, provides certain moving and storage services as a “disclosed households goods agent” on behalf of defendant-appellee Allied Van Lines, Inc. (“Allied”). Defendant-appellee Sirva, Inc. (“Sirva”) is a holding company of Sir-va Worldwide, Inc. (“Sirva Worldwide”) and Sirva Worldwide is the parent company of North American Van Lines, Inc. (‘Van Lines”). Van Lines is the parent company of Allied.

In its agency contract with Allied, Astro agreed to require any employees working on Allied jobs to undergo a criminal background check. If an employee was found to have one of several serious criminal convictions on his or her record, Allied effectively prohibited Astro from allowing those employees to work on Allied jobs.

Griffin and Godwin both submitted consent forms for a background check in February 2011. When the background check was completed, the contractor that performed the check found that Griffin and Godwin had both been convicted of certain felony sexual offenses. Sometime thereafter, the President of Astro, Keith Verder-ber, terminated their employment. Griffin and Godwin, along with another terminated employee not party to this appeal, then brought suit against Astro, Allied, and Sir-va, alleging violations of the NYSHRL, N.Y. Exec. Law § 290 et seq., and against Astro alone for violations of 42 U.S.C. § 1981, the Fair Labor Standards Act (“FLSA”), and the New York Labor Law. Plaintiffs then moved for partial summary judgment against all defendants on the issue of liability under NYSHRL § 296(15) for discrimination on the basis of a criminal conviction. Sirva and Allied then cross-moved for summary judgment.

The district court (Brodie, /.) denied Plaintiffs’ motion for partial summary judgment and granted Sirva and Allied’s motion. The district court determined that Section 296(15) applied only to the aggrieved party’s “employer.” The district court examined a variety of cases discussing how an entity is determined to be an individual’s “employer.” Because Griffin and Godwin were not directly employed by either Allied or Sirva, the district court determined that Allied and Sirva could not be held liable under the NYSHRL for Astro’s termination of Griffin and Godwin.

The question of who may be held liable under Section 296(15) is an unresolved question of New York State law. The case presents the following three questions that the New York Court of Appeals has not had the opportunity to address:

First, does Section 296(15) limit liability for unlawful denial of employment only to the aggrieved party’s “employer”? Second, if Section 296(15) is limited in that way, how should courts determine whether an entity is the aggrieved party’s “employer” for the purposes of a claim under Section 296(15)? Third, does the “aiding and abetting” liability provision of the NYSHRL, Section 296(6), apply to Section 296(15) such that a non-employer may be liable under Section 296(15) as an aider and abettor of an employer’s unlawful denial of employment?

Because we conclude that New York law is unsettled with respect to these three questions, we conclude the law is too undeveloped “in this area to enable us to predict with confidence how the New York Court of Appeals would resolve these issues of New York State law presented on appeal.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 55 (2d Cir.), certified question accepted sub nom. Licci v. Lebanese Canadian Bank, 18 N.Y.3d 952, 944 N.Y.S.2d 472, 967 N.E.2d 697 (2012), and certified question answered sub nom. Licci v. Lebanese Canadian Bank, 20 N.Y.3d 327, 960 N.Y.S.2d 695, 984 N.E.2d 893 (2012).

Therefore, we certify to the New York State Court of Appeals these three questions concerning liability under NYSHRL Section 296(15).

BACKGROUND

The facts set forth below are drawn from the district court’s opinion denying Griffin and Godwin’s motion for partial summary judgment and granting Sirva and Allied’s motion for summary judgment. See Griffin v. Sirva Inc., No. 11-CV-1844 MKB, 2014 WL 2434196 (E.D.N.Y. May 29, 2014). With a few ex-eeptions, the relevant material facts are not in dispute. Thus we provide only those facts we think necessary for a complete understanding of this appeal and the questions of law posed.

I. The Agency Contract

Griffin and Godwin are both former laborer employees of Astro, which “provides local warehouse services and transportation services under its own authority from the New York State Department of Transportation.” App’x at 274. Under its agency contract with Allied, Astro was entitled to, among other things, “pack, crate, prepare for transportation, receive, load, transfer, unload, store, warehouse, deliver, and otherwise to service ... shipments of household goods and all other freight which [Allied] ha[d] authority to transport[.]” App’x at 62.

The agency contract also required Astro to comply with Allied’s “Certified Labor Program” (the “ACLP”). The ACLP required Astro to ensure that all of its employees working on any Allied jobs successfully complete a criminal background check. Under the ACLP, Allied was granted the “sole authority and responsibility to establish and determine the consent process, adjudication standards, and documentation criteria for both certification of indi-wduals and alternative vendors” running the background checks on employees. App’x at 63. Allied was also entitled to conduct “periodic audits” of Astro’s employees to “verify the use of certified individuals and compliance with the ACLP.” App’x at 64. If Astro was found in noncompliance, Allied was permitted to levy a series of fines based on whether the violation was a first, second, or third offense.

Allied maintains certain “adjudication guidelines” that are “used to determine the eligibility of its agents’ contractors and employees for participation in Allied’s interstate moving services.” App’x at 112. Under the guidelines, an employee’s “felony conviction for any (A) sexual offense; (B) kidnapping; (C) death related offenses; (D) attempted murder; (E) assault with a deadly weapon; (F) assault with intent to kill or (G) armed robbery, mandates the [employee’s] permanent disqualification from any jobs performed by” one of Allied’s agents. App’x at 112.

To facilitate the background screening process, Sirva Worldwide entered into an agreement with HireRight Solutions, Inc. (“HireRight”), a vendor providing background screening services, effective August 24, 2010. After an employee fills out a consent form, HireRight conducts a background check and then provides one of Allied’s agents with information as to whether a particular employee is “cleared or not” from working on any of Allied’s jobs. App’x at 48.

II. The Relationship between Allied and Astro

Seventy- to eighty-percent of Astro’s business is projects for Allied. But Allied asserts it is a separate legal entity from Astro, and maintains that it does not share employees, common ownership, or management with Astro. Further, Allied states it “does not control ASTRO’s local moving business, ... nor does ALLIED control ASTRO’s employment policies or practices relating to its own business.” App’x at 96. Allied further asserts that “Allied has no authority to select or hire Astro’s employees and has never possessed such authority” and that Allied “does not establish the salaries or benefits of Astro’s employees, make any payments to Astro’s employees, have the authority to discipline or dismiss Astro’s employees, control the conduct of Astro’s employees, or control the work schedules of, assign jobs to, or supervise the work of Astro’s employees.” Griffin, 2014 WL 2434196, at *2.

III. Griffin and Godwin’s Convictions, Employment with Astro, and Terminations

Griffin began working for Astro in August 2008 and Godwin began working for the company in May 2010. Both worked as “helpers,” which required them to, among other things, pack household goods for transportation and move goods “in and out of ASTRO’s customer’s homes.” App’x at 93.

In 1997, Griffin pleaded guilty to first degree child abuse and sexual misconduct. He was sentenced to six to twelve years’ imprisonment and served ten years. He is designated a “Sexually Violent Offender,” and is currently under the supervision of the New York State Division of Parole with conditions that he is not permitted to have contact with children under the age of eighteen unless he is in the company of another adult.

In 1999, Godwin pleaded guilty to rape in the first degree and sexual abuse in the first degree. He was sentenced to nine years’ imprisonment and was released in 2008. He remained on parole until May 2010. Like Griffin, Godwin is also designated a “Sexually Violent Offender” and subject to the same condition that he have no contact with children under the age of eighteen unless in the company of another adult.

Although Griffin began working for As-tro in August 2008, he was not asked to consent to a background check until 2011, and both Godwin’s and Griffin’s consent forms were submitted to HireRight in February 2011. In response to a question asking whether Griffin had “been convicted of any felony criminal offenses,” Griffin admitted that he was convicted of “child abuse.” App’x at 79. When HireRight’s reports on Griffin and Godwin were returned, both reports stated that neither was eligible to work on any Allied jobs.

DISCUSSION

I. Standard of Review

It is settled that this court “review[s] a grant of summary judgment de novo, ... construing] the evidence in the light most favorable to the nonmoving party and drawing] all reasonable inferences in that party’s favor.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010).

Sirva and Allied dispute the standard of review, claiming that because the jury’s verdict found that Astro did not unlawfully violate the New York State Human Rights Law (“NYSHRL”), that Griffin and Godwin are bound by this verdict on appeal. But “[u]pon review of a grant by a district court of a motion for summary judgment, a federal appellate court may examine only the evidence which was before the district court.” Katir v. Columbia Univ., 15 F.3d 23, 25 (2d Cir. 1994) (internal quotation marks omitted) (emphasis added). Indeed, the “district court’s grant of summary judgment must be examined independently of the evidence presented at trial.” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 242 (4th Cir. 2002). This court’s “review is limited to the record presented to the district court at the time of summary judgment. ... [This court] likewise do[es] not rely on evidence introduced at trial or on the jury’s verdict.” Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir. 1992). “Neither the evidence offered subsequently at the trial nor the verdict is relevant.” Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985).

II. The New York State Human Rights Law

A. Background

“As a general matter, it is unlawful in [New York] for any public or private employer to deny any license or employment application ‘by reason of the individual’s having been previously convicted of one or more criminal offenses.’ ” Acosta v. N.Y.C. Dep’t of Educ., 16 N.Y.3d 309, 314, 921 N.Y.S.2d 633, 946 N.E.2d 731 (2011) (quoting N.Y. Correct. Law § 752). “This general bar was enacted to further certain goals that the Legislature has identified as among the ‘general purposes’ of the Penal Law, hamely, ‘the rehabilitation of those convicted’ and ‘the promotion of their successful and productive reentry and reintegration into society.’” Id. at 314, 921 N.Y.S.2d 633, 946 N.E.2d 731 (quoting NYSHRL § 296). The statute provides in relevant part that

[i]t shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his or her having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-A of the correction law. Further, there shall be a rebuttable presumption in favor of excluding from evidence the prior incarceration or conviction of any 'person, in a case alleging that the employer has been negligent in hiring or retaining an applicant or employee, or supervising a hiring manager, if after learning about an applicant or employee’s past criminal conviction history, such employer has evaluated the factors set forth in section seven hundred fifty-two of the correction law, and made a reasonable, good faith determination that such factors -militate in favor of hire or retention of that applicant or employee.

N.Y. Exec. Law § 296(15). There are, however, two significant exceptions to this general prohibition. The first exception arises where “there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual.” N.Y. Correct. Law § 752(1). The Legislature has clarified that a “ ‘[d]irect relationship’ means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question.” Id. § 750(3).

The second exception allows for adverse treatment where “the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Id. § 752(2). The New York Court of Appeals has “noted that the Legislature has not provided a statutory definition of the phrase ‘unreasonable risk’ in this context ‘for the obvious reason that a finding of unreasonable risk depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct.’ ” Acosta, 16 N.Y.3d at 315, 921 N.Y.S.2d 633, 946 N.E.2d 731 (quoting In re Bonacorsa v. Van Lindt, 71 N.Y.2d 605, 612, 528 N.Y.S.2d 519, 523 N.E.2d 806 (1988)).

Although the “unreasonable risk” analysis under the second exception is a subjective one, Section 753(1) of the Correction Law provides that, “[i]n making a determination” as to whether either the “direct relationship” exception or the “unreasonable risk” exception applies, “the public agency or private employer shall consider” the following eight factors:

(a) The public policy of [New York], as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

N.Y. Correct. Law. § 753(1). “A failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive.” Acosta, 16 N.Y.3d at 316, 921 N.Y.S.2d 633, 946 N.E.2d 731 (citing In re Arrocha v. Bd. of Educ. of City of N.Y., 93 N.Y.2d 361, 364, 690 N.Y.S.2d 503, 712 N.E.2d 669 (1999)).

B. Analysis

While there is a considerable body of law interpreting the NYSHRL by both state and federal courts, few cases have addressed the provisions at issue in this case. The district court held that Allied and Sirva cannot be liable under the NYSHRL in this case because they were not Griffin and Godwin’s “employers.” However, we find there are three problems with this determination because of open and unresolved questions of New York State law.

First, it is unclear whether Section 296(15) is strictly limited to “employers.” The district court inferred that to “ ‘deny employment,’ the denying entity must be an employer as understood by the caselaw interpreting the NYSHRL.” Griffin, 2014 WL 2434196, at *11. While the New York Court of Appeals may interpret the statute in this manner, we cannot say that this interpretation is obviously dictated by the statute’s language or existing case law.

Second, even if Section 296(15) is limited to “employers,” that does not resolve the question of the scope of the term “employer.” “The Human Rights Law definition of employer [refers] only to the number of persons employed[.]” Patrowich v. Chem. Bank, 63 N.Y.2d 541, 543, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) (citation omitted); see also N.Y. Exec. Law §292(5). While New York courts have provided balancing tests to determine whether an entity is an “employer,” they have not applied those tests to Section 296(15). There is also reason to believe that the definition of “employer” could be broader in the context of Section 296(15). For example, in most cases it is unlikely that a New York company would be bound by a contractual term to apply a policy that explicitly discriminates on the basis of race or sex. But in this case, the agency contract explicitly required Astro to discriminate on the basis of prior criminal convictions. Thus, Section 296(15) may be distinguishable from other provisions of the NYSHRL having to do with discrimination on the basis of race or sex, and may well require a broader definition of “employer” to effectuate its prohibition against discrimination.

Third, the NYSHRL also provides for “aiding and abetting” liability. See N.Y. Exec. Law § 296(6). We have found no New York State case law applying this provision to Section 296(15). It is possible that an agency contract, such as the one at issue in this case, could fall within the ambit of aiding and abetting liability under Section 296(6).

i. Whether the Statutory Provision is Expressly Limited to “Employers”

Griffin and Godwin argue that because § 296(15) on its face is not limited to employers, “it is not necessary for Griffin and Godwin to prove that SIRVA and ALLIED were their employers.” Appellants’ Br. at 14. For their part, Alied and Sirva claim that Section 296(15) “only applies to employers.” Appellees’ Br. at 18. While the word “employer” appears nowhere in the first half of the provision, which addresses discrimination on the basis of a conviction, the word is used twice in the second half of the provision addressing negligent hiring practices.

Athough Sirva and Alied insist that the “repeated use of the term ‘employer’ ” in Section 296(15) “leaves no doubt that its discrimination provisions apply only to employers,” Appellees’ Br. at 19, we find this argument unpersuasive absent definitive case law from New York State courts. The second half of this provision addresses an entirely different subject matter than the first portion. In fact, that the term is used twice in the second half of the provision makes its absence in the first half addressing discrimination even more glaring.

Sirva and Alied also suggest that a limitation to “employers” can be inferred because “only an employer can ‘deny employment,’ ” a position the district court adopted. See Griffin, 2014 WL 2434196, at *11. Further, Sirva and Alied point to Section 753 of the New York State Correction Law, incorporated by reference in Section 296(15), which states that “[i]n making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider” the eight relevant factors. N.Y. Correct. Law § 753(2) (emphasis added).

Griffin and Godwin respond that the “drafters of the Executive Law provision here, ... took great pains precisely to avoid limitation of the law’s applicability to employers.” Appellants’ Br. at 9. They contend that other sections of the NYSHRL demonstrate this legislative intent. For example, the provision barring employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, and domestic violence victim status, is expressly limited to an “employer or licensing agency.” N.Y. Exec. Law . § 296(l)(a). Similarly, the prohibition on discrimination in training programs applies only to an “employer, labor organization, employment agency or any joint labor-management committee controlling apprentice training programs.” Id. §296(1-a).

Neither party cites convincing New York State legal authority to support their claims. Absent clear authority in the precedents of the New York State Court of Appeals, we conclude it is appropriate to certify these questions to that Court, respectfully further guidance on these questions of New York law.

ii. The Scope of the term “Employer”

Even if we were to decide that § 296(15) is strictly limited to the aggrieved party’s “employer,” we would still have to decide the scope of the term “employer.” State courts have held that “[gjenerally, four elements are considered in determining whether the relationship of employer and employee exists: “(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct.” State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082, 487 N.Y.S.2d 234, 235 (4th Dep’t 1985) (internal quotation marks omitted). Courts have often stressed that the “really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter.” Id. (internal quotation marks omitted).

The district court seems to have relied on this factor-based analysis in its determination that Allied and Sirva were not Griffin and Godwin’s “employer.” The district court concluded that Allied and Sirva “had no employment relationship” with Griffin and Godwin and did not have “any ownership interest in Astro.” Griffin, 2014 WL 2434196, at *12. The district court also found that Sirva and Allied did not have any other “liability-engendering authority over Plaintiffs” such as (1) the power to hire and fire employees, (2) supervision and control of employee work schedules or conditions of employment, (3) determination of the rate and method of payment, and (4) maintenance of employment records. Id. Furthermore, the district court observed that according to Thomas Lambert, the Director of Agency Services at Allied, “Allied did not instruct Astro to terminate Griffin’s or Godwin’s employment[,] and no one had any advance notice of the termination of their employment.” Id. at *13. Finally, the district court noted that Astro could have simply moved Griffin and Godwin off of Allied jobs. Id.

But these factors have been taken into account by courts when addressing whether an individual is liable under other provisions of the NYSHRL. In Patrowich v. Chemical Bank, the New York Court of Appeals held that an individual is not subject to suit under § 296 of the NYSHRL as an employer unless he “ha[s] an ownership interest” in the employer or if the individual has “the power to do more than carry out personnel decisions made by others.” 63 N.Y.2d at 542, 483 N.Y.S.2d 659, 473 N.E.2d 11. Many cases relied on by the district court in its analysis applied this standard. See e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (an individual may not be hable “if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.”), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Scalera v. Electrograph Sys., Inc., 848 F.Supp.2d 352, 371 (E.D.N.Y. 2012).

But it is not clear that the factors relevant to individual liability under the NYSHRL should control or whether other factors might merit consideration where, as here, the question is whether liability may be imposed on another corporation that has simply a contractual relationship with the employing company. The Court of Appeals does not appear to have addressed the scope of the term “employer” in these circumstances. See Kaiser v. Raoul’s Rest. Corp., 72 A.D.3d 539, 899 N.Y.S.2d 210, 211 (1st Dep’t 2010) (“In the more than 25 years since Patrowich, the Court of Appeals has not again had occasion to construe the definition of ‘employer’ under the Human Rights Law.”).

When determining whether an individual falls under the “control” prong, courts have frequently applied the so-called “economic realities” test, balancing “whether the alleged employer (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). Individuals may be held liable if they “actually participate[ ] in the conduct giving rise to a discrimination claim[.]” Tomka, 66 F.3d at 1317.

The district court assumed that “[w]hen a plaintiff seeks to sue an additional defendant, other than a direct employer, and that additional defendant is a business, courts have also applied the four economic realities factors to determine whether the two companies are ‘joint employers.’ ” Griffin, 2014 WL 2434196, at *13. To support this proposition, the district court relied on Voltaire v. Home Servs. Sys., Inc., 823 F.Supp.2d 77, 96 (E.D.N.Y. 2011). But Voltaire assumed the application of the economic realities factors because “both parties’ submissions state[d] that these factors [were] applicable to both NYSHRL and NYCHRL cases.” Id. at 97. Further, the district court here makes no distinction between the “joint employer” doctrine and the “single employer” doctrine, both of which have been utilized by courts in this circuit in discrimination cases brought against a business that is not the plaintiffs “direct employer.”

The joint employer doctrine, along with the “single employer” (or “single integrated employer”) doctrines “have been developed to allow a plaintiff to assert employer liability in the employment discrimination context against entities that are not her formal, direct employer.” Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 216 (S.D.N.Y. 2010); see also Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 197 (2d Cir. 2005). “A ‘single employer’ situation exists ‘where two nominally separate entities are actually part of a single integrated enterprise ....’” Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir. 1985) (quoting NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir. 1982)). In contrast, a “joint employer” relationship involves separate legal entities that “handle certain aspects of their employer-employee relationship jointly.” Id.

“The single employer doctrine provides that, ‘in appropriate circumstances, an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger single-employer entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated employer.’ ” Fowler v. Scores Holding Co., 677 F.Supp.2d 673, 681 (S.D.N.Y. 2009) (quoting Arculeo, 425 F.3d at 198).

To determine whether two separate entities should be considered a single employer for the purposes of employment discrimination claims, courts have relied on four considerations: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). “Although no one factor is determinative ... control of labor relations is the central concern.” Murray v. Miner, 74 F.3d 402, 404 (2d Cir. 1996).

“The joint employer doctrine applies where there is no single integrated enterprise, but where two employers ‘handle certain aspects of their employer-employee relationship jointly.’ ” Fowler, 677 F.Supp.2d at 681 (quoting Arculeo, 425 F.3d at 198). For example, “[a]n employee formally employed by one entity can be found to be constructively employed by another entity, and thus may impose liability for violations of employment law on the constructive employer.” Id.; see also NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94 (2d Cir. 1994) (“A joint employer relationship may be found to exist where there is sufficient evidence that the respondent had immediate control over the other company’s employees.”). The doctrine is drawn in part from express language in the Family and Medical Leave Act (“FMLA”), which provides that separate and distinct entities with separate owners may be “joint employers under the FMLA if they ‘jointly exercise some control over the work or working conditions of the employee.’ ” Voltaire, 823 F.Supp.2d at 96 (quoting 29 C.F.R. § 825.106(a)).

The district court made no apparent attempt to distinguish analytically the “joint employer” doctrine from the “single employer” doctrine. Both have been applied by courts in this circuit when considering discrimination claims against businesses that are not the plaintiffs “direct employer.” But whether one or the other (or both) applies to the NYSHRL, especially Section 296(15), remains unresolved.

Hi The Applicability of the “Aiding and Abetting” Provision

Finally, we do not believe New York case law is settled on whether the “aiding and abetting” provision of the NYSHRL, § 296(6), is applicable to the facts of this case. The district court determined that the “joint employer” doctrine also applies when a plaintiff is seeking “aiding and abetting” liability of “an additional defendant, other than a direct employer, and that additional defendant is a business.” Griffin, 2014 WL 2434196, at *12. We cannot say this is obviously the case. The provision that gives rise to aiding and abetting liability provides that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden ... or to attempt to do so.” N.Y. Exec. Law § 296(6). At least where the alleged aider and abettor is an individual employee of the corporate employer, we have held that this provision requires that the alleged aider and abettor “ ‘actually participated in the conduct giving rise to the claim of discrimination,’ and that the ‘aider and abettor share the intent or purpose of the principal actor.’ ” Idlisan v. N.Y.S. Dep’t of Taxation & Fin., No. 12-CV-1787 MAD/CFH, 2013 WL 2898050, at *4-5 (N.D.N.Y. June 13, 2013) (quoting Robles v. Goddard Riverside Cmty. Ctr., No. 08-CV-4856, 2009 WL 1704627, at *3 (S.D.N.Y. June 17, 2009)); see also Tomka, 66 F.3d at 1317 (“A defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [NYS]HRL.”). Again, we see reason to think that New York might construe this provision differently when the liability of a corporation that contracts with the employing corporate defendant is at issue: different considerations may be relevant. Further, even if the standards are similar or the- same for the individual co-employee and the contracting corporate defendant, we think it would be an odd result to hold that a defendant business that “actually participate^] in the conduct giving rise to a discrimination claim,” may be liable only if it is the defendant’s “direct employer” or if it also satisfies the “joint employer” doctrine. The district court fails to explain why such a result is dictated by the text of the NYSHRL or existing New York State case law. As with respect to the prior two questions, the law is unsettled on the applicability of Section 296(6) to Section 296(15).

CONCLUSION

Before we certify a question to the Court of Appeals, “we must answer three others: (1) whether the New York Court of Appeals has addressed the issue and, if not, whether the decisions of other New York courts permit us to predict how the Court of Appeals would' resolve it; (2) whether the question is of importance to the state and may require value judgments and public policy choices; and (3) whether the certified question is determinative of a claim before us.” Osterweil v. Bartlett, 706 F.3d 139, 142 (2d Cir. 2013), (internal quotation marks omitted), certified question accepted, 20 N.Y.3d 1058, 961 N.Y.S.2d 832, 985 N.E.2d 428 (2013), and certified question answered, 21 N.Y.3d 580, 977 N.Y.S.2d 153, 999 N.E.2d 516 (2013). In this case, the answer to each suggests that certification is appropriate.. First, as discussed above, New York courts have not determined who may be liable under § 296(15), or addressed the scope § 296(6) when the alleged aider and abettor is not an individual. Second, the prohibition against discrimination on the basis of prior criminal convictions reflects the New York Legislature’s important policy goal of promoting “successful and productive reintegration into society.” See Acosta, 16 N.Y.3d at 314, 921 N.Y.S.2d 633, 946 N.E.2d 731 (internal quotation marks omitted). The question of who may be held liable for violating that prohibition will have a substantial effect on how that goal is realized. Finally, the outcome of this appeal will depend ón the answers to the certified questions. If § 296(15) applies only to “direct “employers, and §296(6) does not permit aiding and abetting liability in these circumstances, Griffin and God-win’s claims against Allied and Sirva fail as a matter of law. On the other hand, if Griffin and Godwin can assert their claims against Allied and Sirva, the district court’s order must be vacated and their cases allowed to proceed.

Accordingly, and pursuant to New York Court of Appeals Rule 500.27 and Local Rule 27.2 of this Court, we certify the following three questions to the New York Court of Appeals:

(1) Does Section 296(15) of the New York State Human Rights Law, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party’s “employer”?

(2) If Section 295(15) is limited to an aggrieved party’s “employer,” what is the scope of the term “employer” for these purposes, ie. does it include an employer who is not the aggrieved party’s “direct employer,” but who, through an agency relationship or other means, exercises a significant level of control over the discrimination policies and practices of the aggrieved party’s “direct employer”?

(3) Does Section 296(6) of the New York State Human Rights Law, providing for aiding and abetting liability, apply to § 296(15) such that an out-of-state principal corporation that requires its New York State agent to discriminate in employment on the basis of a criminal conviction may be held liable for the employer’s violation of § 296(15)?

In certifying these questions, we do not bind the Court of Appeals to the particular questions stated. Rather, the Court of Appeals may expand these certified inquiries to address any further question of New York law as might be relevant to the particular circumstances presented in this appeal. This panel will resume its consideration of this appeal after the disposition of this certification by the New York Court of Appeals.

It is hereby ORDERED that the Clerk of Court transmit to the Clerk of the New York Court of Appeals this opinion as our certifícate, together with a complete set of the briefs, the appendix, and the record filed in this Court by the parties. The parties shall bear equally any fees and costs that may be imposed by the New York Court of Appeals in connection with this certification.

      . There is some dispute in the record regarding whether Griffin was actually "terminated" or whether he voluntarily resigned. For the purposes of this opinion, we assume, without deciding, that Griffin was terminated because of his criminal conviction.

      . The case against Astro proceeded to trial, where a jury found Astro liable only for violations of the Fair Labor Standards Act and not liable for a violation of the NYSHRL.


author: DEBRA ANN LIVINGSTON, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Daniel GREENBERG, Defendant-Appellant.
    Nos. 14-4208-cr(L), 14-4278-cr(con)
    August Term 2015
    United States Court of Appeals, Second Circuit.
    Argued: January 11, 2016
    Decided: August 31, 2016
    See also, 2016 WL 4574482.

      FoR Appellee: ChaRles N. Rose, David C. James, Walter M. Norkin, Assistant United States Attorneys, New York, N.Y., for Robert L. Capers, United States Attorney for the Eastern District of New York, for the United States of America.
    For Defendant-AppellaNt: Erio M. CreizMan, Creizman PLLC, New York, N.Y., for Daniel Greenberg.
    Before: STRAUB, LIVINGSTON, and CHIN, Circuit Judges.
   DEBRA ANN LIVINGSTON, Circuit Judge:

This appeal arises from Daniel Green-berg’s conviction of wire fraud, access device fraud, aggravated identity theft, and money laundering in connection with a scheme to make unauthorized credit card charges to the credit cards of customers of Greenberg’s digital retail company, Classic Closeouts, LLC (“CCL”). During the summer of 2008, there were approximately 77,000 unauthorized charges to these customer cards, totaling approximately $5 million, all supposedly related to a “Frequent Shopper Club” program at CCL. Following a civil case brought by the Federal Trade Commission (“FTC”) and a criminal investigation, the Government filed a Superseding Indictment, charging Greenberg with eight counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of access device fraud, in violation of 18 U.S.C. §§ 1029(a)(5) and 1029(c)(l)(A)(ii); one count of aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(l), 1028A(b), 1028A(c), and 1028A(c)(5); and three counts of money laundering through unlawful monetary transactions, in violation of 18 U.S.C. § 1957(a). Greenberg was convicted of all counts in January 2014, after a jury trial.

This opinion addresses two of Green-berg’s arguments on appeal. First, Green-berg contends that the district court erred in denying his motion to dismiss the Superseding Indictment for spoliation of evidence. Next, he argues that the wire fraud counts should have, been dismissed because of a “lack of convergence” between the parties injured and those deceived by the “Frequent Shopper Club” scheme. We reject both arguments and, accordingly, affirm the judgment of conviction.

BACKGROUND

I. Factual Background

From 2002 until 2009, Greenberg owned and operated CCL, an Internet retailer of discounted clothing and other merchandise. Greenberg served as CCL’s president and managing member, and was the sole signatory on CCL’s accounts. CCL operated from 110 West Graham Avenue in Hempstead, New York (“the Premises”). CCL maintained a website, classicclose-outs.com, from which it sold its merchandise. The website was certified by TRUSTe, an independent organization that certifies the privacy practices of its Internet licensees.

In order to process credit or debit card charges for purchased items, CCL maintained a merchant account with Bank of America Merchant Services (“BAMS”). In 2006, CCL entered into an agreement with Cynergy Data, LLC (“Cynergy”) to serve as CCL’s payment processor, an intermediary between the acquiring bank— BAMS — and the merchant — CCL. The agreement established a fee schedule that included a “rolling reserve,” an amount of money set in reserve by the payment processor to offset any “chargebacks” incurred by the merchant. A chargeback occurs when a cardholder contacts his issuing bank to dispute a charge appearing on his account statement, and the issuing bank charges that amount back to the acquiring bank. A “reversal” occurs when a merchant is able to prove the legitimacy of the initial transaction, and the charge reappears on the cardholder’s ac-, count (thus reversing the chargeback).

A. The Scheme

In the first part of 2008, during a period of declining sales volume at CCL, Green-berg called Jason Mizrahi, a CCL graphic designer, to task him with creating a template, supposedly for distribution to customers, to promote a CCL “Frequent Shopper Club.” This was unusual, as Mizrahi generally received assignments from his direct supervisor, head graphic designer Lisa Chin, and not Greenberg. Mizrahi designed the promotion template and provided it to Greenberg, but the designer never saw his work product on the CCL website. Greenberg did, however, send the template to Venkata Chittabathini, a CCL computer programmer, and directed him to create a program for charging customer credit cards in connection with the membership program. Notably, despite these undertakings by Greenberg, other CCL employees who were otherwise heavily involved in CCL’s marketing and sales (including CCL’s customer service manager, Simcha Geller, its warehouse manager, Alejandro Rubenstein, and Chin) never discussed the Frequent Shopper Club with Greenberg or were ever directly informed of its existence.

During the summer of 2008, CCL received an influx of complaints from customers asserting that their credit cards had been charged even though they had not placed an order with CCL. Customers making such complaints testified at trial that they had made at least one purchase from CCL in the past, and they were unaware that CCL had retained their credit card information. Numerous customers attempted to contact CCL about the charges during this period, but their calls and voicemails frequently went unanswered. Charged in amounts ranging from $29.99 to $79.99, various of these customers testified at trial that they had never joined a frequent shopper club and had never received promotional emails or any other communication from CCL concerning such a club.

As complaints mounted, Geller informed Greenberg about the influx sometime in June 2008. Greenberg responded that a computer programmer was working on the problem, a computer glitch. Even as Geller noted the questionable transactions continuing to increase — he testified that they eventually reached tens of thousands of dollars a day — Greenberg never mentioned the Frequent Shopper Club in his discussions with Geller about the issue. Green-berg, however, did ask Geller whether payment for these transactions had come into the company’s bank accounts.

During this period, other companies that had a relationship with CCL — TRUSTe, Cynergy, and Shop.com — noticed increased consumer complaints regarding unauthorized charges and began to make inquiries. Greenberg provided inconsistent explanations to each company. Thus, Greenberg told a TRUSTe compliance officer that the charges were due to a computer glitch that had occurred over the Fourth of July weekend, affecting “at most 100 consumers,” all of whom had been or would be given chargebacks. App’x 261. In a follow-up email, Greenberg mentioned the Frequent Shopper Club, claiming that CCL had been offering it to customers “for years at various times and in various formats” and that “thousands of previous members [had] gladly paid and renewed yearly for several years already.” App’x 269. In July, Greenberg explained to Cyn-ergy that the chargebacks were due to customers who initially joined the Frequent Shopper Club but were disgruntled because they were not able to get through to CCL’s customer service departmént because of the flood of interest in the program. Last, when Shop.com inquired as to the “alarming number of inquiries from customers” about unauthorized charges, Greenberg explained that the charges resulted from “a promotion offering consumers a members only shipping benefit.” App’x 411-12. He specified that none of CCL’s customers’ personally identifiable information had been compromised. Ultimately, owing to continuing customer complaints and Greenberg’s insufficient explanations, TRUSTe, Cynergy, and Shop.com all terminated their respective relationships with CCL.

Between June and August 2008, CCL customers incurred over 77,000 unauthorized charges, totaling approximately $5 million. Approximately 44,000 charge-backs in the total amount of about $3.3 million resulted from customers disputing the charges with the issuing banks. Green-berg defended the validity of the charges, however, causing approximately 19,000 of the chargebacks to be reversed, so that over $1.3 million of the unauthorized charges reappeared on customers’ credit card statements. Between July and August 2008, Greenberg transferred nearly $1 million from his CCL merchant account to various other bank accounts which he controlled.

B. The FTC Action

On June 24, 2009, the FTC filed a civil action against both Greenberg and CCL in the United States District Court for the Eastern District of New York (Wexler, J.). FTC v. Classic Closeouts, LLC, 09-cv-2692 (LDW). The FTC alleged that Greenberg and CCL had engaged in “unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C. § 45(a), in violation of Section 5 of the FTC Act, by repeatedly charging customers’ credit cards without their authorization. On June 29, 2009, the district court entered a temporary restraining order (“TRO”) against CCL, and appointed a temporary receiver (the “Receiver”) to prevent, among other things, destruction of evidence.

The Receiver interviewed Greenberg at the Premises the very next day. According to the Receiver’s account of that interview, presented in a report to the district court later that summer, Greenberg claimed that in January 2009, he sold CCL to Hazen NY Inc. (“Hazen”), a company owned by CCL’s former warehouse manager, Jonathan Bruk. Greenberg indicated that after the sale he maintained his office at the Premises and worked as a consultant to Hazen. The Receiver also reported that the FTC attempted to preserve evidence that day by imaging the hard drives of CCL computers, but FTC employees were unable to image everything owing to power failures. When the FTC’s computer specialist returned the next day to complete the task, he was denied access to the premises.

In her report to the district court, dated August 20, 2009, the Receiver concluded that the sale of CCL to Hazen “may be a sham” and that “CCL’s operations may be continuing through the [n]ew [defendants.” Gov’t App’x 14. The report explained that the original defendants had failed to cooperate with the Receiver, as the TRO required, by “failing to provide repeatedly requested documentation about the ... assets and transfers of money and property.” Id. Next, the report indicated that the Receiver had found “no evidence of a legitimate transfer of ownership of CCL.” Id. at 15. The report explained that although CCL was apparently “not operating,” it “may [have been] continuing its sales operations through certain of the [n]ew [defendants.” Id. at 17. Last, the report detailed evidence of transfers of CCL’s assets to new defendants, and the failure to produce documents.

On September 21, 2009, CCL was evicted from the Premises. According to the Government, in that eviction, representatives of Bennett Moving, Storage and Evictions (“Bennett”) took possession of all of CCL’s property, including its computers and servers, and transferred it to United Storage, a storage facility in West Hemp-stead, New York.

C. The Criminal Investigation

The criminal investigation began in February 2010, some seven or eight months after the FTC action commenced. The Government asserts that on April 14, 2010, Inspector Charles Schriver of the United States Postal Inspection Service contacted Bennett, the company that had taken possession of CCL’s property, and was informed that Greenberg had retrieved it. Inspector Schriver next contacted United Storage, which confirmed that the CCL property, including the computers and servers, had been removed in January 2010. Schriver thereafter obtained copies of the previously-imaged CCL hard drives from the FTC. The FTC indicated to Schriver in an email that some of the data from CCL computers and servers had not been successfully acquired. The FTC retained the originally imaged computer evidence in Washington, D.C.

Discussions between the United States Attorney’s Office for the Eastern District of New York (“EDNY”) and Jason Ber-land, an attorney representing Greenberg, began months before Greenberg was first indicted in April 2012. On January 12, 2012, Berland, one of numerous successive attorneys who represented Greenberg in connection with the criminal case, emailed Inspector Schriver and the Assistant United States Attorney (“AUSA”) handling the investigation. The email stated that Green-berg retained “back-up copies of the servers that he and some of his employees were able to access at Classic Closeouts,” and that data that Berland had reviewed with Greenberg and also “discussed with a forensic analyst,” had been obtained from these back-ups and would be provided to the Government. Gov’t App’x 21. Two weeks later, on January 26, 2012, Berland reported that Greenberg possessed “a few dozen gigabytes of data to be analyzed” and indicated that he would obtain the material for the Government to review. Id. at 26. On February 1, 2012, Berland again emailed, attesting that he would provide “data pertinent to establishing that an email went out to customers and that there were legitimate customer enrollments” and expressing the hope thát this “conclusive proof’ would persuade the Government not to move forward with the case. Id. at 35. Berland indicated that Greenberg was “finishing the process of copying the data to a back-up drive” and that Berland would thereafter provide it. Id.

Berland’s efforts did not ultimately dissuade the Government from seeking an indictment. More pertinent here, the Government asserts that neither Greenberg nor his counsel indicated during this period leading up to indictment “that Green-berg lacked the evidence to prove his innocence or that the CCL computers and servers were in the possession or control of someone other than Greenberg.” Gov’t Br. 8. At the conclusion of the negotiations, Berland thanked the AUSA for “extraordinary” generosity with her time “over the past couple of months” during which these negotiations occurred. Gov’t App’x 36.

II. Procedural History

On April 26, 2012, the Government filed a three-count indictment against Green-berg and about one month later provided him with its initial discovery letter, which indicated that “[t]he replica of hard drives seized by the Federal Trade Commission [was] being stored” and was “available for copy.” Letter Regarding Discovery at 8, United States v. Greenberg, No. 12-cr-0301 (ADS) (E.D.N.Y. May 30, 2012), ECF No. 27. After the Government filed the Superseding Indictment in November 2012, Greenberg’s new lawyer, John Wallenstein, requested an adjournment of the trial date so that he could obtain certain records from Greenberg’s former attorneys in the FTC civil proceeding, and so that he could review the CCL evidence copied by the FTC in June 2009 and the associated chain of custody logs. In May 2013, Wallenstein contacted the AUSA to inquire about the original CCL computers and servers. The Government responded that the FTC had left the original computers and servers on CCL’s premises with Greenberg and Bruk and that it did not know where they were currently located.

On June 13, 2013, after replacing Wallenstein, Greenberg filed a motion seeking dismissal of the Superseding Indictment based on the Government’s alleged spoliation of evidence. In a declaration, Green-berg admitted that he had known, from June 2009, that the FTC had not captured all the CCL computer and server data. Without discussing what had happened with the computers and servers after the FTC’s attempt to image the data,- he also declared that he learned from Wallenstein in May 2013 that Wallenstein had inquired and been advised by the Government that the original computers and servers were not in Washington, D.C., and that their whereabouts were unknown. Greenberg argued that though he had saved some data to his personal computer, including evidence of emails sent to customers, he could not introduce this evidence at trial because he would not be able to establish chain of custody for these materials. The district court denied the motion without an evidentiary hearing, concluding that Greenberg had “failed to show bad faith on the part of the government” and that this showing was “[v]ery important for a spoliation motion.” App’x 101-02.

Trial commenced a few weeks later and spanned about three weeks. On January 24, 2014, the jury convicted Greenberg on all thirteen counts of the Superseding Indictment. On October 31, 2014, the district court sentenced Greenberg principally to 84 months’ incarceration, three years’ supervised release, and restitution in the sum of $1,125,022.58. On November 7, 2014, the district court entered a corrected judgment of conviction and order of forfeiture. This appeal followed.

DISCUSSION

This opinion addresses two of Green-berg’s claims on appeal: (1) whether the Superseding Indictment should have been dismissed for spoliation of material evidence (or, in the alternative, whether the district court should have held an eviden-tiary hearing concerning the prosecution’s bad faith); and (2) whether the Superseding Indictment fails to plead a legally cognizable wire fraud scheme under 18 U.S.C. § 1343 because there is a lack of convergence between the intended victims of the scheme and the parties deceived.

I

We first consider Greenberg’s argument that the Superseding Indictment should have been dismissed based on spoliation of material evidence — CCL’s computers and servers — or, in the alternative, that an evidentiary hearing should have been held concerning the prosecution’s bad faith. We review for abuse of discretion a district court’s decision whether to dismiss a case on the ground that spoliation of evidence has deprived the defendant of a fair trial. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). We will reject the district court’s factual findings in support of its decision only if they are clearly erroneous. See United States v. Rahman, 189 F.3d 88, 139 (2d Cir. 1999); see also United States v. Morgenstern, 933 F.2d 1108, 1116 (2d Cir. 1991). Discerning no error, much less an abuse of discretion, in the district court’s decision, we conclude that Greenberg’s argument is without merit.

- A criminal defendant moving for dismissal on the basis of spoliation of the evidence must make a two-pronged showing that the evidence possessed exculpatory value “that was apparent before [it] was destroyed” and that it was “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); see also United States v. Rastelli, 870 F.2d 822, 833 (2d Cir. 1989). In addition, while Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), teaches that good or bad faith is irrelevant when the Government suppresses or fails to disclose material exculpatory evidence, when the Government has, instead, failed to preserve evidentiary material that is “potentially useful,” such failure “does not violate due process ‘unless a criminal defendant can show bad faith’ ” on the part of the Government. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). Failure to satisfy any of these requirements, including a failure to show the Government’s bad faith, is fatal to a defendant’s spoliation motion. See Rastelli, 870 F.2d at 833; see also United States v. U.S. Currency in the Amount of $228,-536.00, 895 F.2d 908, 917 (2d Cir. 1990) (noting that “unless a defendant can show bad faith ... destruction of potentially useful evidence is not a denial of due process”).

At the outset, it is doubtful that Green-berg’s moving papers even raised a due process issue regarding the failure to preserve evidence. As we have said in the past, “the record must first show that evidence has been lost and that this loss is ‘chargeable to the State.’ ” Rahman, 189 F.3d at 139 (quoting Colon v. Kuhlmann, 865 F.2d 29, 30 (2d Cir. 1988)). The FTC, in its civil investigation, sought to image the computer hard drives. These images were deficient and incomplete in various ways — a fact that Greenberg admits to knowing at the time and that was also disclosed to the defense during discovery. Greenberg now complains that the FTC acted negligently in imaging the drives. Even assuming such negligence, however, at the time of the civil investigation only the FTC was involved and Greenberg points to no evidence that a criminal indictment was directly contemplated. See Rahman, 189 F.3d at 139-40 (holding that the loss of recordings made without the awareness of the criminal investigators could not be charged to the prosecution). And while he asserts in his opening brief that “the prosecution team was equally culpable for failing to take adequate steps to collect the original computers and servers,” Greenberg Br. 42, Greenberg points to no facts consistent with this assertion and does not provide substantive support for his argument that the failure to collect evidence could ground a due process claim in circumstances analogous to those here.

Setting this problem aside, Greenberg’s argument still fails. We may assume ar-guendo that the missing computer data satisfied Trombetta’s two-pronged test: that the data that the FTC did not image in June 2009 was potentially useful to the defense and that Greenberg was unable to obtain comparable evidence by reasonably available means. Greenberg’s argument on appeal is nevertheless without merit because, as the district court concluded, the record is devoid of evidence that the Government acted in bad faith in failing to preserve the data. See United States v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991) (noting that even assuming unpreserved evidence “might have been potentially useful” to the defense, “absent bad faith there is no violation”); Rastelli, 870 F.2d at 833 (noting that where “record is barren of proof that the government lost the evidence in bad faith,” “[o]n this ground alone, the missing-evidence claim must fail”).

Greenberg’s arguments to the contrary do not point to ways in which he can overcome this evidentiary gap. He contends, first, that “ ‘bad faith’ in the context of a spoliation motion can be established short of the intentional destruction of documents” by mere “carelessness in preserving documents of obvious relevance and importance.” Greenberg Br. 41. But this argument (even assuming that Greenberg could point to facts in support of it) is foreclosed by Youngblood, where the Supreme Court held that the loss of semen samples that were of obvious potential use to the defense did not deprive the defendant of due process where this loss by police could “at worst be described as negligent.” 488 U.S. at 58, 109 S.Ct. 333; see also Fisher, 540 U.S. at 548, 124 S.Ct. 1200 (holding that the mere fact that destroyed evidence was at the time sought in a pending discovery request did not “eliminate[ ] the necessity of showing bad faith on the part of police”).

Greenberg next attempts, in passing, to bolster his allegation of bad faith with the claim that the information the FTC was unable to image was materially exculpatory, not simply of potential use in his defense. Greenberg Reply Br. 16. The “presence or absence of bad faith,” however, as the Supreme Court noted in Young-blood, “necessarily turn[s] on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” 488 U.S. at 56 n.*, 109 S.Ct. 333. Suffice it to say here, moreover, that Greenberg offers no facts in support of his conclusion that the evidence was materially exculpatory, much less that the Government could have known this information. Greenberg relies heavily on the district court’s observation, before trial, that while Greenberg’s motion to dismiss the indictment was properly denied for failure to show bad faith, Greenberg satisfied Trom-betta’s two prongs by showing that the missing computer data had exculpatory value and that he could not obtain comparable evidence through other reasonably available means. The district court, however, did not conclude that the missing data was materially exculpatory, as opposed to potentially useful. After hearing the evidence at trial, moreover, the court observed, in denying Greenberg’s request for an adverse inference instruction regarding this missing evidence, that “[t]he evidence in this trial, the overwhelming evidence, is that the computers and servers would show evidence contrary, against, the interests of the defendant.” App’x 576 (emphasis added). We see no reason to disagree.

In sum, “the record is barren of proof that the government [failed to preserve] the evidence in bad faith.” Rastelli, 870 F.2d at 883-34. As the district court noted, the record instead reveals, at most, that the FTC in a civil action had access to computer data that was not successfully imaged on the first attempt and that a complete image was never thereafter obtained by criminal investigators. None of this suggests bad faith and thus, as the district court concluded, there is no merit to Greenberg’s argument that he was denied a fair trial. We discern no error in this conclusion, nor in the district court’s related determination not to hold an evi-dentiary hearing on the issue. See United States v. Binday, 804 F.3d 558, 593 (2d Cir. 2015) (noting that a district court’s denial of evidentiary hearing is reviewed for abuse of discretion).

II

Greenberg next contends that the district court erred in denying his motion to dismiss the wire fraud counts in the Superseding Indictment, Counts One through Eight, because they failed to articulate a legally cognizable wire fraud scheme. Specifically, Greenberg advances the “convergence theory” of wire fraud, which, he argues, requires the party defrauded and the party injured to be one and the same. Here, Greenberg argues that because the Superseding Indictment alleged that he “lied not to the customers, but to the issuing banks and credit card processors when they confronted him with disputed charges,” there was a “lack of convergence between the intended victim of the scheme and the party deceived.” Greenberg Br. 44. We review de novo a district court’s denial of a motion to dismiss charges in an indictment. United States v. Yousef, 327 F.3d 56, 137 (2d Cir. 2003).

The federal mail and wire fraud statutes penalize using the mails or a wire communication to execute “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§ 1341, 1343. Thus, the “essential elements” of the crime are “(1) a scheme to defraud, (2) money or property as the object of the scheme, and (3) use of the mails or wires to further the scheme.” Binday, 804 F.3d at 569 (quoting Fountain v. United States, 357 F.3d 250, 255 (2d Cir. 2004)); see also United States v. Autuori, 212 F.3d 105, 115 (2d Cir. 2000). As we have recently reiterated, “[t]he gravamen of the offense is the scheme to defraud.” United States ex rel. O’Donnell v. Countrywide Home Loans, Inc., 822 F.3d 650, 657 (2d Cir. 2016) (quoting Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 647, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)); cf. Binday, 804 F.3d at 569 (“ ‘Because the mail fraud and the wire fraud statutes use the same relevant language, we analyze them the same way.’ ” (quoting United States v. Schwartz, 924 F.2d 410, 416 (2d Cir. 1991))).

To that end, the wire fraud statute requires the Government to show proof of a “scheme or artifice to defraud,” 18 U.S.C. § 1343, “which itself demands a showing that the defendant possessed a fraudulent intent,” but the Government need not prove “that the victims of the fraud were actually injured,” but only “that defendants contemplated, some actual harm or injury to their victims.” United States v. Novak, 443 F.3d 150, 156 (2d Cir. 2006) (quoting United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987)); see also Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that these fraud statutes “prohibit ] the ‘scheme to defraud,’ rather than the completed fraud”). Nothing in these statutory texts, moreover, suggests that the scheme to defraud must involve the deception of the same person or entity whose money or property is the object of the scheme. To the contrary, we agree with the First Circuit that the statutory language in both the mail and wire fraud statutes “is broad enough to include a wide variety of deceptions intended to deprive another of money or property” and “[w]e see no reason to read into the statutes an invariable requirement that the person deceived be the same person deprived of the money or property by the fraud.” United States v. Christopher, 142 F.3d 46, 54 (1st Cir. 1998).

We have never read the wire and mail fraud statutes as limited to schemes in which the party whose money or property is the object of the scheme is the same party whom a fraudster seeks to deceive. Indeed, we have declined opportunities to do so. See Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 263 (2d Cir. 2004), rev’d in part, vacated in part on other grounds, 547 U.S. 451, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006); United States v. Eisen, 974 F.2d 246, 253 (2d Cir. 1992). Greenberg marshals only two Second Circuit cases in support of his argument: United States v. Evans, 844 F.2d 36 (2d Cir. 1988), and United States v. Covino, 837 F.2d 65 (2d Cir. 1988). In Evans, however, although we observed that it “seems logical that the deceived party must lose some money or property,” 844 F.2d at 39, we specifically declined to adopt that proposition as an element of wire fraud. Id. at 40 (“[T]he case before us today does not require us to decide this general question.”); see also Anza, 373 F.3d at 262-63 (discussing, among other cases, Evans, and explaining that although such cases discussed the convergence theory, “[t]his Court has not held that the civil-RICO plaintiff who alleges mail fraud or wire fraud must have been the entity that relied on the fraud”); United States v. Novod, 923 F.2d 970, 974 (2d Cir. 1991), on reh’g, 927 F.2d 726 (2d Cir. 1991) (“Evans contended in part that the property must belong to the deceived party.... We did not reach this question.... ”). And Green-berg’s reliance on Covino is likewise inap-posite, as the language he cites was in consideration of a wholly different issue — namely, whether the withholding of material information concerning breach of a fiduciary duty amounted to a deprivation of property under the statute. See id., 837 F.2d at 71-72.

Thus, in this case we join at least four sister circuits and make clear that we reject the requirement of convergence urged by Greenberg: wire fraud does not require convergence between the parties intended to be deceived and those whose property is sought in a fraudulent scheme. Because the wire fraud statute does not impose a convergence requirement, the district court did not err in denying Greenberg’s motion to dismiss the wire fraud counts in the Superseding Indictment for failure to plead a legally cognizable scheme. That the Superseding Indictment alleges that Greenberg’s misrepresentations were directed at acquiring banks and others, but that the credit card holders were the intended victims of the scheme, is irrelevant. We reject Greenberg’s argument to the contrary.

CONCLUSION

For the foregoing reasons, and for those stated in the summary order, that accompanies this decision, we AFFIRM the judgment of conviction.

      . Greenberg raises additional arguments that are addressed and rejected in a summary order issued concurrently with this opinion.

      . The factual background regarding the crimes of which Greenberg was convicted is derived from the testimony and evidence presented at Greenberg's trial. Additional background is based upon the record and is undisputed or attributed to a particular party, as noted.

      . CCL’s goods were also included on aggregator retail websites, including Shop.com, which compile a searchable digital database of the items offered on, and link to, multiple merchants' websites.

      . The TRUSTe certification gives a website the right to post the TRUSTe logo on its site, as an indication of the reliability of its privacy practices. TRUSTe has a consumer privacy-related dispute resolution service, which allows consumers to report complaints about its licensees so that TRUSTe can then investigate and identify whether the licensee should be required to take any corrective measures to remain in the program.

      . This opinion uses two terms to refer to the actors who execute these transactions. An “issuing bank” is a financial institution that issues credit and debit cards to customers. An "acquiring bank” is a financial institution that enters into agreements with merchants enabling them to accept and process credit card charges for payment. In this case, BAMS served as the acquiring bank.

      . This was unusual. Chin was normally responsible for creating marketing materials that were posted on the company's website and emailed to customers. She was unaware of the Frequent Shopper Club and never saw any promotion for the club even though she checked the CCL website daily and reviewed CCL’s promotional emails. Similarly, Geller maintained an email account specifically to monitor CCL’s advertisements and promotions, but he never received any email concerning a frequent shopper club.

      . Chin also raised the issue with Greenberg, who suggested to her that these unauthorized charges were occurring because of fraud by-"some other company” or a "test” conducted by a "credit card company” that "wasn't supposed to go out and ... did by accident.” App’x 509-11. In fact, an unauthorized CCL charge of $39.99 appeared on Chin’s own credit card statement, but Greenberg instructed Chittabathini to remove it after Chin complained.

      . Geller, who testified both that Greenberg was the only person at CCL with the ability and authorization to charge a customer’s credit card and that he could do so remotely, recounted that the first time he, Geller, saw a direct reference to the Frequent Shopper Club was in a bank document related to credit card chargebacks.

      . Greenberg's explanation was particularly suspicious because TRUSTe had received complaints before July 4, 2008.

      . There were, in fact, many more attempted CCL charges but many of the credit card accounts involved had been closed or had expired before the charges were attempted.

      . Greenberg also indicated that he was the sole owner of 110 West Graham Avenue Corporation, which leased and retained control over the Premises.

      . The FTC commenced its action against only CCL and Greenberg. In its Amended Complaint, however, the FTC named several additional defendants: IVAL Group, LLC, AYC Holdings Corp., 110 West Graham Avenue Corp., Bruk, Hazen, Stephanie H. Greenberg, and YGC Enterprises, Inc.

      . Greenberg also filed a motion to dismiss the wire fraud counts of the Superseding Indictment — Counts One through Eight — on May 24, 2013. The district court denied this motion after hearing argument on November 1, 2013.

      . The only evidence that Greenberg introduced in putting forth his defense at trial was a set of bank records admitted pursuant to a stipulation.

      . Greenberg relies on our decision in United States v. Grammatikos to argue that the appropriateness of sanctions for the failure to preserve evidence depends on a case-by-case assessment of the Government’s "culpability for the loss, together with a realistic appraisal of its significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the government's untainted proof.” 633 F.2d 1013, 1020 (2d Cir. 1980). Grammatikos, however, was decided before Youngblood and must be read in light of this subsequent Supreme Court precedent. Further, Greenberg fails to articulate how the Grammatikos test would be applied in the present case or to highlight facts that would support an alternate analysis.

      . We join the First, Fifth, Seventh, and Eighth Circuits. See United States v. Seidling, 737 F.3d 1155, 1161 (7th Cir. 2013) (“[T]his Court does not interpret the mail fraud statute as requiring convergence between the misrepresentations and the defrauded victims.”); United States v. McMillan, 600 F.3d 434, 450 (5th Cir. 2010) (concluding that ”[t]he Government was not required to prove that misrepresentations were made directly to any of the victims” in pursuing a mail fraud conviction where defendants filed false financial reports with the state department of insurance resulting in risk and financial loss to policyholders); Christopher, 142 F.3d at 54 (upholding the wire fraud conviction of a defendant that deceived state insurance regulators, but that resulted in financial losses of policyholders, because it could find "no reason to read into the [mail and wire] statutes an invariable requirement that the person deceived be the same person deprived of the money or property by the fraud”); United States v. Blumeyer, 114 F.3d 758, 768 (8th Cir. 1997) (concluding that "a defendant who makes false representations to a regulatory agency in order to forestall regulatory action that threatens to impede the defendant’s scheme to obtain money or property from others is guilty [of violating the mail fraud statute]” even though it was the policyholders who incurred the financial losses).

      . The government also argues that, even if we were to adopt a convergence requirement, the Superseding Indictment, contrary to Greenberg’s claims, sufficiently alleged such convergence. However, we have no need to address this contention in light of our holding today.