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Mail and Wire Fraud Post 'Kelly v. United States'
Under the federal mail and wire fraud statutes, it is a crime to "obtain[] money or property by means of false or fraudulent pretenses, representations, or promises," or to deprive someone of the "intangible right of honest services." 18 U.S.C. §§1341, 1343, 1346. The scope of these prohibitions has expanded over time. This expansion has been met with infrequent, but significant, pushback from the courts. Perhaps most prominent is the line of Supreme Court decisions which initially resisted and later narrowed the scope of "honest services" fraud. See, McNally v. United States, 483 U.S. 350 (1987); Skilling v. United States, 130 S. Ct. 2896 (2010); McDonnell v. United States, 136 S. Ct. 2355 (2016).
In Kelly v. United States, 140 S. Ct. 1565 (2020), the Supreme Court turned its attention to a fraud scheme premised on "obtaining money or property." Id. at 1572. In that case, the Supreme Court rejected the government's theory of "property." A unanimous court held that a scheme was not intended to "obtain property" when its objective was to misuse government officials' regulatory powers, or when monetary losses were "incidental," and not the actual object of the scheme.
Following Kelly, the meaning of property was central to two high-profile cases in the Second Circuit. In United States v. Blaszczak, 947 F.3d 19 (2d Cir. 2019), vacated, 141 S. Ct. 1040 (2021), the government and defendants addressed whether the misuse of confidential information concerning future government regulations amounted to obtaining property. In United States v. Gatto, 986 F.3d 104 (2d Cir. 2021), cert. denied, 2021 WL 5869415 (Dec. 13, 2021), the Second Circuit addressed the circumstances under which a monetary loss—in this case, by universities that extended athletic scholarships—should be seen as "incidental" to the charged scheme.
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