譯者 | 黃堯 隆德大學碩士研究生

一審 | LYJ. NUS LL.M

二審 | 李正茂 香港大學普通法學碩士

Grant Delaune

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white-collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope—leading the Supreme Court to eliminate certain honest-services theories of fraud and limit property-based theories of fraud to the protection of “traditional property interests".

Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have struggled to consistently determine whether alleged property interests are covered by these statutes. This has led to overturned convictions in high-profile mail and wire fraud cases ranging from the Varsity Blues college admission scandal to the Buffalo Billion bid-rigging scheme.

This Comment aims toaid courts conducting the traditional property interest analysis by synthesizing the Supreme Court’s property-based case law and proposing a hallmarks-of-property test. By providing structure to the currently amorphous analysis, the hallmarks-of-property test should minimize lingering constitutional vagueness concerns and provide increased deterrence to the would-be fraudsters across the United States.

The federal wire fraud and mail fraud statutes form the cornerstone of white-collar criminal enforcement. While the number of federal white-collar prosecutions has declined over the past several decades, wire fraud prosecutions are at an all-time high—making up nearly half of the lead charges in white-collar cases. In particular, wire and mail fraud have formed the basis for convictions ranging from scams with international notoriety, including the prosecutions of FTX founder and CEO Sam Bankman-Fried and Theranos founder and CEO Elizabeth Holmes, to local public corruption scandals.

Prohibiting “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,” these broadly worded statutes provide a flexible tool for prosecutors to go after misconduct. All manner of traditional frauds have been prosecuted using these statutes including fraudulent investment schemes, false insurance claims, and misrepresentations on loan applications. As former Assistant U.S. Attorney and current Federal District Judge Jed Rakoff once famously quipped, “[t]o federal prosecutors of white collar crime, the mail fraud statute is our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart—and our true love…. [W]e always come home to the virtues of 18 U.S.C. § 1341, with its simplicity, adaptability, and comfortable familiarity.” Inspired by this famous quote, academics have described the wire fraud statute in similar, but modernized, terms as “the white-collar prosecutor’s newest, truest love: her Stratocaster, her Nikes, her Dyson, her iPhone.”

這些措辭寬泛的法規禁止“任何欺詐方案或手段，或以虛假或欺詐性藉口、陳述或承諾騙取金錢或財產”，為檢察官打擊不當行為提供了一個靈活的工具。各種傳統欺詐行為均已利用這些法規進行起訴，包括欺詐性投資計劃、虛假保險索賠和貸款申請中的虛假陳述等。正如美國前助理檢察官、現任聯邦地區法官Jed Rakoff曾說過的一句名言：“對於聯邦白領犯罪檢察官來說，郵件欺詐法規是我們的斯特拉迪瓦里小提琴、柯爾特點45手槍、路易斯維爾棒球棒、美膳雅廚具——也是我們的真愛……我們總是回到《美國法典》第18篇第1341節的優點上來，它簡單易懂、適應性強、令人感到熟悉舒適。”受這句名言的啟發，學者們用類似但現代化的詞語來形容電信欺詐法，稱其為“白領檢察官最新、最真摯的愛：她的Stratocaster吉他、她的耐克、她的戴森、她的蘋果手機”。

（圖片來源於網路）

However, the “adaptability” of the mail and wire fraud statutes extolled by prosecutors has been the subject of persistent academic and judicial hostility. Early mail fraud jurisprudence in the late 1800s was filled with debates over how mail-centric the charged fraudulent schemes needed to be to sustain convictions. These disputes were eventually resolved when the statute was amended in 1909, but judicial skepticism of expansive readings of the amended statute would soon rear its head again. Despite the unanimous view of the courts of appeals that the text of the 1909 amendment encompassed schemes to defraud not “aimed at causing [the] deprivation of money or property”  (so-called intangible rights–based theories of fraud), the Supreme Court limited the statutes’ protection to property rights in 1987, largely on constitutional vagueness grounds. In response, Congress quickly intervened and passed an amendment defining “scheme or artifice to defraud” to include those that “deprive another of the intangible right of honest services.” However, this amendment was soon subjected to its own vagueness challenge in Skilling v. United States, in which the Court held that the reinstated honest-services theories needed to be limited to their “bribe-and-kickback core” to pass constitutional muster.

（圖片來源於網路）

This dynamic process of Congress drafting and prosecutors deploying the mail and wire fraud statutes broadly and, in return, facing persistent judicial concerns regarding overcriminalization and vagueness continues to this day. In recent years the battleground has merely shifted to the scope of property protected by the fraud statutes. After the Supreme Court neutered the familiar tool of honest-services fraud in Skilling, prosecutors have attempted to reframe cases they would have previously charged under an honest-services theory using property-based theories. 

This past term in Ciminelli v. United States, however, the Court invalidated a significant doctrine supporting such tactics. The case centered on the wire fraud conviction of real estate developer Louis Ciminelli for his role in a bid-rigging scandal. The Court found the prosecution’s “right-to-control” theory of property-based wire fraud, which allowed for a conviction if the defendant denied “the victim the [property] right to control its assets by depriving it of information necessary to make discretionary economic decisions,” strayed too far from “traditional property interests” to form the basis for a conviction. As a result, Ciminelli’s conviction had to be reversed.

While the right to control doctrine had been heavilycriticized by many academics, it is not the only property-based prosecutorial theory to have recently been rebuffed by the judiciary. Notably, the First Circuit’s reversal of the mail and wire fraud convictions of two parents involved in the Varsity Blues college admissions scandal generated headlines across the gamut of popular media outlets. In United States v. Abdelaziz, the court held that the “admission slots” central to the government’s theory of the case were not property within the scope of the mail and wire fraud statutes. The court felt that to hold otherwise would be inconsistent with the Supreme Court’s dictate that only “traditional notions of property” are protected by the statutes. The First Circuit also rejected the government’s proposed definition of property protected against mail and wire fraud. This reversal was surprising given the Sixth Circuit’s decision in United States v. Frost, which had found “unissued degrees” to constitute property within these statutes’ scope in a prior prosecution addressing a separate higher education scandal.

Theinconsistency between the holdings of Abdelaziz and Frostillustrates the confusing morass the outer boundaries of property-based mail and wire fraud have become. Lower courts are put in the unfortunate position of determining if property-based theories are consistent with the Supreme Court’s “traditional property interests” test without a clear framework for answering this question. Extrapolating from Supreme Court case law, courts have identified “potentially relevant guideposts” for this inquiry, such as dictionary definitions and case law. However, these sources are often indeterminate, in the case of dictionaries, or undermined by a failure of prior cases to “ground” their analysis in “traditional property notions.”

The resulting uncertainty has fanned the flames of academic and judicial criticism. Notably, at least some Justices of the Supreme Court appear to have ongoing vagueness concerns with the scope of mail and wire fraud statutes. They view the statutes’ uncertain outer boundaries as “leav[ing] people with no sure way to know what consequences will attach to their conduct.” On the other hand, the legal uncertainty—coupledwith the perception that the Supreme Court is sympathetic to white-collar defendants—likelyundercuts the deterrence value of the mail and wire fraud statutes.

This Comment aims to address the confusion surrounding property-based theories of wire and mail fraud. Specifically, it proposes a novel test that can assist future courts’ analysis of property-based theories of mail and wire fraud, focusing attention on whether a given interest is (1) economically valuable, (2) obtainable, (3) exclusive, and (4) nonregulatory. These elements are drawn not only from the Supreme Court’s decisions about the scope of property in its mail and wire fraud case law, but also from its parallel property jurisprudence in the federal antiextortion context. By centering the traditional property interest inquiry on these hallmarks of property, courts should be able to evaluate creative prosecutorial theories of property-based fraud in a more consistent and predictable manner—minimizing concerns of unconstitutional vagueness and providing appropriate deterrence to the “the ever-inventive American ‘con artist.’”

（圖片來源於網路）

This Comment proceeds in three parts. Part I details the historical development and evolution of the mail and wire fraud statutes. Part II highlights the disjointed and inconsistent case law of property-based prosecutorial theories. It then identifies and summarizes several seminal decisions addressing how property is defined in the mail and wire fraud statutes, as well as in the Hobbs Act, the federal antiextortion statute that contains a similar property requirement. Part III derives the principles guiding the Supreme Court’s interpretation of property and its scope, culminating with a proposed hallmarks-of-property test. Finally, Part III concludes with two illustrativeapplications of the hallmarks-of-property test.

（圖片來源於網路）

As Justice Neil Gorsuch recently noted, the uncertainty surrounding the scope of the mail and wire fraud statutes “leave[s] people with no sure way to know what consequences will attach to their conduct.” This uncertainty is both under- and over-inclusive—unwary defendants charged under aggressive theories of property-based fraud are unlikely to have understood the potential consequences of their actions, while well-heeled, would-be fraudsters are unlikely to be deterred from undertaking white-collar crimes. The stakes are further heightened by the sweeping reach of the mail and wire fraud statutes and their role as the “first line of defense” against new forms of fraudulent activity.

This Comment attempts to address this legal uncertaintyby organizing the disjoined mail and wire fraud case law and proposing the hallmarks-of-property test. Focusing attention on whether a given interest is (1) economically valuable, (2) obtainable, (3) exclusive, and (4) nonregulatory gives structure to the currently amorphous and unsettled “traditional property interest” analysis. Using this framework, courts will be able to evaluate creative prosecutorial theories of property-based fraud in a more consistent and predictable manner—minimizing concerns of unconstitutional vagueness while still providing appropriate deterrence to the “the ever-inventive American ‘con artist.’”

文章來源：https://lawreview.uchicago.edu/print-archive/deciphering-traditional-property-interests-test-property-based-mail-and-wire-fraud