The U.S. Supreme Court is about to hear argument on United States v. Salman, an insider trading case that tests the limits of its earlier decisions in McNally v. United States, 483 U.S. 350 (1987) and Skilling v. United States, 561 U.S. 358 (2010). McNally held that Title 18 (mail and wire) fraud did not reach theft of services that resulted in no economic harm. In an effort to overrule McNally, Congress made theft of “honest services” a new crime under the antifraud provisions of Title 18 U.S.C. 1346. Skilling pushed back holding that the “fraud” language of 1346 limited prosecutions of “theft of honest services” to instances where the fraudster obtained an economic benefit—more specifically a bribe or kickback.
Although Salman comes to the court as a Title 15 prosecution for insider trading, the court will be called upon to interpret nearly identical antifraud language that also appears in Title 18. This article explores why the outcome of the Salman case is tied to the Title 18 cases and statutes that already have established that fraud may only be charged as a crime in situations where the deceit results in a defined economic benefit or causes an economic harm.
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