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to demonstrate that the object of the alleged scheme was to deprive PennDOT of
money or property.

The Third Circuit rejected this argument, concluding that Kousisis and Alpha

“set out to obtain millions of dollars that they would not have received but for their
fraudulent misrepresentations.” United States v. Kousisis, 82 F.4th 230, 240 (3d Cir.

2023) (“obtaining the government’s money or property was precisely the object of
[the] fraudulent scheme”). The Circuit rejected Petitioners’ framing that they merely

defrauded the government out of DBE participation, which is, by itself, not a property
interest. Rather, the Circuit concluded that obtaining government money was the

true purpose of the scheme. Petitioners obtained that money through a contract
with PennDOT, and “DBE participation was an essential component of the contract.

Without it, the nature of the Parties’ bargain would have been different.” To that
end, the Circuit rejected the assertion that the contracts themselves are not property.

Looking at historical sources of traditional property rights, the court concluded “the
privilege of contracting” is a property right, “without which there cannot be full and

free use and enjoyment of property.”

The Third Circuit noted that the 2.25% upcharge from Markias also satisfied
the property requirement, as “the fee Markias received was the government’s money”

and “was not an amount PennDOT would have paid regardless of which contractor
performed the work.” Indeed, that upcharge would not exist at all other than to

support the pseudo-DBE component of the scheme.

The Circuit also rejected the concern from amici that upholding the conviction
“would turn essentially every purposeful breach of contract into a potential violation

of the federal criminal property fraud statutes.” Addressing Petitioner’s motion
for reconsideration in light of the Supreme Court’s recent decision in Ciminelli v.

United States, 598 U.S. 306 (2023) (holding that “[t]he right to valuable economic
information needed to make discretionary economic decisions” (known as the “right-

to-control theory”) cannot sustain a wire fraud conviction), the Circuit rejected, in
a footnote, the notion that Ciminelli changed the analysis, as “the basis of the wire

fraud conviction” against Kousisis and Alpha was “not PennDOT’s frustrated interest

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