The federal mail and wire fraud statutes have been described as a “Louisville Slugger,” a powerful tool used by prosecutors to combat dishonest behavior in private and public life. Jed S. Rakoff, “The Federal Mail Fraud Statute (Part I),” 18 Duq. L. Rev. 771, 771 (1980). These laws seek to punish the use of false or misleading statements to deprive someone of money or property. Over time, the range of activity to which these statutes have been applied has grown to include schemes that do not contemplate direct financial injury.

A “right to control” theory has been formulated to account for unlawful schemes that do not cause a tangible monetary loss, but merely deprive the victim of “information necessary to make discretionary economic decisions.” United States v. Rossomando, 144 F.3d 197, 201 n.5 (2d Cir. 1998). Given the doctrine's potential breadth, the Second Circuit has sought to limit “right to control” schemes to those involving misrepresentations of “an essential element of the bargain,” as distinct from other deceit that might occur in an economic transaction. United States v. Davis, No. 13-CR-923 (LAP), 2017 WL 3328240, at *8 (S.D.N.Y. Aug. 3, 2017).

In this article, we discuss SDNY Judge Loretta A. Preska's recent decision in United States v. Davis, in which Judge Preska analyzed the Second Circuit's “right to control” decisions and concluded that a guilty verdict should be set aside. We then address practical steps defense counsel can take when facing a mail or wire fraud prosecution premised on this sometimes elusive doctrine.