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SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1170
_________________
LOUIS CIMINELLI, PETITIONER
v. UNITED
STATES, et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[May 11, 2023]
Justice Thomas delivered the opinion of the
Court.
In this case, we must decide whether the Second
Circuit’s longstanding “right to control” theory of fraud describes
a valid basis for liability under the federal wire fraud statute,
which criminalizes the use of interstate wires for “any scheme or
artifice to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises.” 18
U. S. C. §1343. Under the right-to-control theory, a
defendant is guilty of wire fraud if he schemes to deprive the
victim of “potentially valuable economic information” “necessary to
make discretionary economic decisions.”
United States v.
Percoco, 13 F. 4th 158, 170 (CA2 2021) (internal
quotation marks omitted). Petitioner Louis Ciminelli was charged
with, tried for, and convicted of wire fraud under this theory. And
the Second Circuit affirmed his convictions on that same basis.
We have held, however, that the federal fraud
statutes criminalize only schemes to deprive people of traditional
property interests.
Cleveland v.
United States,
531 U.S.
12, 24 (2000). Because “potentially valuable economic in-
formation” “necessary to make discretionary economic decisions” is
not a traditional property interest, we now hold that the
right-to-control theory is not a valid basis for liability under
§1343. Accordingly, we reverse the Second Circuit’s judgment.
I
This case begins with then-New York Governor
Andrew Cuomo’s “Buffalo Billion” initiative. On its face, the
initiative was administered through Fort Schuyler Management
Corporation, a nonprofit affiliated with the State University of
New York (SUNY) and the SUNY Research Foundation. It aimed to
invest $1 billion in development projects in upstate New York.
Later investigations, however, uncovered a wide-ranging scheme that
involved several of former Governor Cuomo’s associates, most
notably Alain Kaloyeros and Todd Howe. Kaloyeros was a member of
Fort Schuyler’s board of directors and was in charge of developing
project proposals for Buffalo Billion; Howe was a lobbyist who had
deep ties to the Cuomo administration. Each month, Kaloyeros paid
Howe $25,000 in state funds to ensure that the Cuomo administration
gave Kaloyeros a prominent position in Buffalo Billion.
Ciminelli had a similar arrangement. His
construction company, LPCiminelli, paid Howe $100,000 to $180,000
each year to help it obtain state-funded jobs. In 2013, Howe and
Kaloyeros devised a scheme whereby Kaloyeros would tailor Fort
Schuyler’s bid process to smooth the way for LPCiminelli to receive
major Buffalo Billion contracts. First, on Kaloyeros’ suggestion,
Fort Schuyler established a process for selecting “preferred
developers” that would be given the first opportunity to negotiate
with Fort Schuyler for specific projects. Then, Kaloyeros, Howe,
and Ciminelli jointly developed a set of requests for proposal
(RFPs) that treated unique aspects of LPCiminelli as qualifications
for preferred-developer status. Those RFPs effectively guaranteed
that LPCiminelli would be (and was) selected as a preferred
developer for the Buffalo projects. With that status in hand,
LPCiminelli secured the marquee $750 million “Riverbend project” in
Buffalo.
After an investigation revealed their scheme,
Ciminelli, Howe, Kaloyeros, and several others were indicted by a
federal grand jury on 18 counts including, as relevant here, wire
fraud in violation of 18 U. S. C. §1343 and conspiracy to
commit wire fraud in violation of §1349.
Throughout the grand jury proceedings, trial,
and appeal, the Government relied on the Second Circuit’s “right to
control” theory, under which the Government can establish wire
fraud by showing that the defendant schemed to deprive a victim of
potentially valuable economic information necessary to make
discretionary economic decisions. The Government’s indictment and
trial strategy rested solely on that theory.[
1] And, it successfully defeated Ciminelli and his
codefendants’ motion to dismiss by relying on that theory. In
addition, it successfully moved the District Court to exclude
certain defense evidence as irrelevant to that theory. The
Government also relied on that theory in its summation to the
jury.
Consistent with the right-to-control theory, the
District Court instructed the jury that the term “property” in
§1343 “includes intangible interests such as the right to control
the use of one’s assets.” App. 41. The jury could thus find that
the defendants harmed Fort Schuyler’s right to control its assets
if Fort Schuyler was “deprived of potentially valuable economic
information that it would consider valuable in deciding how to use
its assets.”
Ibid. The District Court further defined
“economically valuable information” as “information that affects
the victim’s assessment of the benefits or burdens of a
transaction, or relates to the quality of goods or services
received or the economic risks of the transaction.”
Ibid.
The jury found Ciminelli guilty of wire fraud and conspiracy to
commit wire fraud and the District Court sentenced him to 28
months’ imprisonment followed by 2 years’ supervised release.
On appeal, Ciminelli challenged the
right-to-control theory, arguing that the right to control one’s
assets is not “property” for purposes of the wire fraud statute.
Defending the wire fraud convictions, the Government relied solely
on the right-to-control theory. The Second Circuit affirmed the
convictions based on its longstanding right-to-control precedents,
holding that, by “rigging the RFPs to favor their companies,
defendants deprived Fort Schuyler of potentially valuable economic
information.” 13 F. 4th, at 171 (internal quotation marks
omitted).
We granted certiorari to determine whether the
Second Circuit’s right-to-control theory of wire fraud is a valid
basis for liability under 18 U. S. C. §1343. 597
U. S. ___ (2022). And, we now hold that it is not.
II
A
The wire fraud statute criminalizes “scheme[s]
or artifice[s] to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises.” §1343. Although the statute is phrased in the
disjunctive, we have consistently understood the “money or
property” requirement to limit the “scheme or artifice to defraud”
element because the “common understanding” of the words “to
defraud” when the statute was enacted referred “to wronging one in
his property rights.”
Cleveland, 531 U. S., at 19
(internal quotation marks omitted).[
2] This understanding reflects not only the original
meaning of the text, but also that the fraud statutes do not vest a
general power in “the Federal Government . . . to enforce
(its view of ) integrity in broad swaths of state and local
policymaking.”
Kelly v.
United States, 590 U. S.
___, ___ (2020) (slip op., at 12). Instead, these statutes
“protec[t] property rights only.”
Cleveland, 531 U. S.,
at 19. Accordingly, the Government must prove not only that wire
fraud defendants “engaged in deception,” but also that money or
property was “an object of their fraud.”
Kelly, 590
U. S., at ___ (slip op., at 7) (alterations omitted).
Despite these limitations, lower federal courts
for decades interpreted the mail and wire fraud statutes to protect
intangible interests unconnected to traditional property rights.
See
Skilling v.
United States,
561 U.S.
358, 400 (2010) (recounting how “the Courts of Appeals, one
after another, interpreted the term ‘scheme or artifice to defraud’
to include deprivations not only of money or property, but also of
intangible rights”). For example, federal courts held the fraud
statutes reached such intangible interests as the right to “honest
services,”
ibid. (internal quotation marks omitted); the
right of the citizenry to an honest election, see
United
States v.
Girdner, 754 F.2d 877, 880 (CA10 1985); and
the right to privacy,
United States v.
Louderman, 576
F.2d 1383, 1387 (CA9 1978). In
McNally v.
United
States,
483 U.S.
350 (1987), this Court halted that trend by confining the
federal fraud statutes to their original station, the “protect[ion
of] individual property rights.”
Id., at 359, n. 8.
Congress then amended the fraud statutes “specifically to cover one
of the ‘intangible rights’ that lower courts had protected under
[the statutes] prior to
McNally: ‘the intangible right of
honest services.’ ”
Cleveland, 531 U. S., at 19–20
(quoting 18 U. S. C. §1346).
The right-to-control theory applied below first
arose after
McNally prevented the Government from basing
federal fraud convictions on harms to intangible interests
unconnected to property. See
United States v.
Wallach, 935 F.2d 445, 461–464 (CA2 1991). As developed by
the Second Circuit, the theory holds that, “[s]ince a defining
feature of most property is the right to control the asset in
question,” “the property interests protected by the wire fraud
statute include the interest of a victim in controlling his or her
own assets.”
United States v.
Lebedev, 932 F.3d 40,
48 (2019) (alterations omitted). Thus, a “cognizable harm occurs
where the defendant’s scheme denies the victim the right to control
its assets by depriving it of information necessary to make
discretionary economic decisions.”
United States v.
Binday, 804 F.3d 558, 570 (CA2 2015) (alterations
omitted).[
3]
The right-to-control theory cannot be squared
with the text of the federal fraud statutes, which are “limited in
scope to the protection of property rights.”
McNally, 483
U. S., at 360. The so-called “right to control” is not an
interest that had “long been recognized as property” when the wire
fraud statute was enacted.
Carpenter v.
United
States,
484 U.S.
19, 26 (1987). Significantly, when the Second Circuit first
recognized the right-to-control theory in 1991—decades after the
wire fraud statute was enacted and over a century after the mail
fraud statute was enacted—it could cite no authority that
established “potentially valuable economic information” as a
traditionally recognized property interest. See
Wallach, 935
F. 2d, at 462–463.[
4] And,
the Second Circuit has not since attempted to ground the
right-to-control theory in traditional property notions. We have
consistently rejected such federal fraud theories that “stray from
traditional concepts of property.”
Cleveland, 531
U. S., at 24. For its part, the Government—despite relying
upon the right-to-control theory for decades, including in this
very case—now concedes that if “the right to make informed
decisions about the disposition of one’s assets, without more, were
treated as the sort of ‘property’ giving rise to wire fraud, it
would risk expanding the federal fraud statutes beyond property
fraud as defined at common law and as Congress would have
understood it.” Brief for United States 25–26. Thus, even the
Government now agrees that the Second Circuit’s right-to-control
theory is unmoored from the federal fraud statutes’ text.
The right-to-control theory is also inconsistent
with the structure and history of the federal fraud statutes. As
recounted above, after
McNally put an end to federal courts’
use of mail and wire fraud to protect an ever-growing swath of
intangible interests unconnected to property, Congress responded by
enacting §1346, which—despite the wide array of intangible rights
courts protected under the fraud statutes
pre-
McNally—revived “
only the intangible right of
honest services.”
Cleveland, 531 U. S., at 19–20
(emphasis added). “Congress’ reverberating silence about other
[such] intangible interests” forecloses the expansion of the wire
fraud statute to cover the intangible right to control.
United
States v.
Sadler, 750 F.3d 585, 591 (CA6 2014).
Finally, the right-to-control theory vastly
expands federal jurisdiction without statutory authorization.
Because the theory treats mere information as the protected
interest, almost any deceptive act could be criminal. See,
e.g.,
United States v.
Viloski, 557 Fed. Appx.
28 (CA2 2014) (affirming right-to-control conviction based on an
employee’s undisclosed conflict of interest). The theory thus makes
a federal crime of an almost limitless variety of deceptive actions
traditionally left to state contract and tort law—in flat
contradiction with our caution that, “[a]bsent [a] clear statement
by Congress,” courts should “not read the mail [and wire] fraud
statute[s] to place under federal superintendence a vast array of
conduct traditionally policed by the States.”
Cleveland, 531
U. S., at 27. And, as it did below, the Second Circuit has
employed the theory to affirm federal convictions regulating the
ethics (or lack thereof ) of state employees and
contractors—despite our admonition that “[f]ederal prosecutors may
not use property fraud statutes to set standards of disclosure and
good government for state and local officials.”
Kelly, 590
U. S., at ___ (slip op., at 12) (alterations omitted). The
right-to-control theory thus criminalizes traditionally civil
matters and federalizes traditionally state matters.
In sum, the wire fraud statute reaches only
traditional property interests. The right to valuable economic
information needed to make discretionary economic decisions is not
a traditional property interest. Accordingly, the right-to-control
theory cannot form the basis for a conviction under the federal
fraud statutes.
B
Despite indicting, obtaining convictions, and
prevailing on appeal based solely on the right-to-control theory,
the Government now concedes that the theory as articulated below is
erroneous. Brief for United States 24–26. The Government frankly
admits that, “to the extent that language in the [Second Circuit’s]
opinions might suggest that depriving a victim of economically
valuable information, without more, necessarily qualifies as
‘obtaining money or property’ within the meaning of the fraud
statutes, that is incorrect.”
Id., at 24. That should be the
end of the case.
Yet, the Government insists that its concession
does not require reversal because we can affirm Ciminelli’s
convictions on the alternative ground that the evidence was
sufficient to establish wire fraud under a traditional
property-fraud theory.
Id., at 31–32. With profuse citations
to the records below, the Government asks us to cherry-pick facts
presented to a jury charged on the right-to-control theory and
apply them to the elements of a
different wire fraud theory
in the first instance. In other words, the Government asks us to
assume not only the function of a court of first view, but also of
a jury. That is not our role. See,
e.g.,
McCormick v.
United States,
500 U.S.
257, 270–271, n. 8 (1991) (“Appellate courts are not
permitted to affirm convictions on any theory they please simply
because the facts necessary to support the theory were presented to
the jury”);
Chiarella v.
United States,
445 U.S.
222, 236 (1980). Accordingly, we decline the Government’s
request to affirm Ciminelli’s convictions on alternative
grounds.
III
The right-to-control theory is invalid under
the federal fraud statutes. We, therefore, reverse the judgment of
the Court of Appeals and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
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