Page:Ciminelli v. United States.pdf/11

8 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.