The federal mail and wire fraud statutes are among the most powerful tools of federal prosecutors because they are drafted in broad language designed to reach unanticipated and ever-changing methods of fraud. As Judge Jed Rakoff wrote many years ago, when he was a federal prosecutor, the mail and wire fraud statutes are “our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart—and our true love.”1 But the reach of these laws is not unlimited. Courts have rejected mail and wire fraud prosecutions when prosecutors have attempted to criminalize conduct that does not cross the line, albeit blurry at times, between sharp or unethical behavior and outright fraud.2
The outer boundary of the mail and wire fraud statutes has recently been tested in the context of arm’s length business negotiations. Courts have wrestled with the distinction between aggressive negotiating tactics and criminal fraud schemes. In a recent divided decision in United States v. Weimert,3 the U.S. Court of Appeals for the Seventh Circuit held that the government overreached by applying the wire fraud statute to misstatements about a negotiating position—for example, the lowest or highest price a party to a business deal is willing to accept.
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