Elkan Abramowitz and Jonathan S. Sack Property in Mail and Wire Fraud Cases: 'Kelly v. United States' and Its Aftermath
In 'Kelly v. United States', a unanimous Supreme 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, 'Blaszczak' and 'Gatto'. In this edition of their White-Collar Crime column, Elkan Abramowitz and Jonathan S. Sack explain the impact of 'Kelly' on 'Blaszczak' and 'Gatto' and conclude with a brief discussion of the "right to control" theory of mail and wire fraud, which has been challenged in light of the 'Kelly' decision.
January 06, 2022 at 12:15 PM
10 minute read
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).
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