Page 26 - 2024 OAD First Monday in October Journal

• Cleveland v. U.S., 531 U.S. 12 (2000)

The Supreme Court reversed a mail fraud conviction for a lawyer who assisted

an individual with securing a license for a video poker business in Louisiana by
falsifying who the sole beneficial owners of the business were—which allowed the
true beneficiary to conceal tax and financial problems that could have jeopardized

the license. The Court held that permits or licenses do not qualify as property within

the meaning of the mail fraud statute. To satisfy the mail fraud statute, the object
of the fraud must be property in the hands of the victim, not just the hands of the
recipient. In the case of licenses, “the State’s core concern is regulatory” falling within

the state’s police powers. Id. at 20. Significantly, “the Government nowhere allege[d]

that Cleveland defrauded the State of any money to which the State was entitled by
law.” Id. at 22–23.

The Court’s conclusion was also supported by the Rule of Lenity and federalism,

as an alternative holding would result in “a sweeping expansion of federal criminal
jurisdiction in the absence of a clear statement by Congress.” Id. at 24. The Court
further declined to overrule its conjunctive interpretation of the statute reached in

McNally.

• Pasquantino v. U.S., 544 U.S. 349 (2005) (Thomas, J.)
The Supreme Court upheld wire fraud convictions where defendants engaged

in a scheme to smuggle large quantities of liquor into Canada. The Court held the

unrealized federal tax (the uncollected excise taxes) constitutes property under the
fraud statutes. “The right to be paid money has long been thought to be a species of
property.” Id. at 356.

• Kelly v. U.S., 590 U.S. 391 (2020) (Kagan, J.)
The Supreme Court unanimously reversed wire fraud conviction for Bridgegate,
i.e., closing 12 local-access toll lanes on the George Washington Bridge in Fort Lee, NJ

to punish its mayor for refusing to support then-Governor Chris Christie’s re-election

campaign. The theory below, as affirmed by the Third Circuit, was that defendant’s
efforts commandeered the bridge’s access lanes and diverted the wage labor of Port
Authority employees. The Court rejected the Government’s framing of Defendant’s

24