The news is rarely good for white-collar criminal defense attorneys and their clients. Prosecutors traditionally have had numerous avenues to garner fraud convictions, even when there was no intent to do any harm to the “victim.” But as Bob Dylan famously sang: “the times they are a-changin.” The U.S. Supreme Court and numerous circuit courts are seriously narrowing the scope of behavior that constitutes criminal fraud. This developing legal landscape requires defense counsel to rethink strategies on how to best defend against federal criminal fraud allegations.
The changes began in 2020 when the Supreme Court unanimously reversed convictions of associates of former New Jersey Governor Chris Christie who were involved in the “Bridgegate” scandal. Kelly v. United States, et al., 590 U.S. __ (2020). The defendants allegedly schemed to close two lanes of traffic on the George Washington Bridge as political retribution against a local mayor who refused to support the Governor’s re-election campaign. The Supreme Court held that, because the central purpose of the scheme was not to obtain “money or property,” a wire and federal programs fraud prosecution was not viable.
