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actions as “commandeering” the lanes. The defendant did not use the lanes for a

non-public purpose, but instead used ordinary regulatory authority to reallocate the
lanes between different drivers, which is an ordinary exercise of regulatory authority—

even if the intent was malicious. Similarly, if any misallocation of government
employee time can support a wire fraud conviction, then the Government could have

sustained its conviction in Cleveland simply by arguing the fraudulent poker licenses
wasted government employee time.

• Ciminelli v. U.S., 598 U.S. 306 (2023) (Thomas, J.)

The Supreme Court reversed wire fraud convictions premised on a “right
to control” theory, which recognizes “potentially valuable economic information

necessary to make discretionary economic decisions” as property with the meaning
of the federal fraud statutes. The scheme at issue involved the Buffalo Billions

investment initiative, with defendant paying individuals in control of that initiative to
create a preferred developer program with criteria specifically designed to be met

by defendant’s construction firm. The Court found that type of information needed
to make a discretionary decision was not “recognized as property when the wire

fraud statute was enacted.” Id. at 314. Moreover, “[b]ecause the theory treats mere
information as the protected interest, almost any deceptive act could be criminal.” Id.

at 315.

C. Four (of the Many) Informative Circuit Decisions Attempting to Delineate
Between Property and Non-Property Rights

• U.S. v. Bruckhausen, 977 F.2d 464 (9th Cir. 1992)

(pre-Cleveland, Pasquantino, Kelly, and Ciminelli)
The Ninth Circuit reversed wire fraud conviction where defendant smuggled

sensitive technology into the Soviet Union despite telling the technology manufacturers
that he would keep the products in the United States. The Circuit rejected the argument

that the government could have confiscated the technology, and, therefore, that it
had a property interest in it. “The government’s potential forfeiture interest is too

ethereal to fall within the protections of a statute that ‘had its origin in the desire to
protect individual property rights.’” Id. at 467 (quoting McNally, 483 U.S. at 358–59

n.8). The Circuit also rejected an analogy to Carpenter (the Wall Street Journal case),

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