Page:Ciminelli v. United States.pdf/2

2 the defendant schemed to deprive a victim of potentially valuable economic information necessary to make discretionary economic decisions. Consistent with that 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,” which could be harmed by depriving Fort Schuyler of “potentially valuable economic information.” The jury convicted Ciminelli of wire fraud and conspiracy to commit wire fraud. On appeal, Ciminelli argued that the right to control one’s assets is not “property” for purposes of §1343. The Second Circuit affirmed the convictions on the basis of its longstanding right-to-control precedents.

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.” Id., 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. From the theory’s inception, the Second Circuit has not grounded the right to control in traditional property notions. The theory is also inconsistent with the structure and history of the federal fraud statutes. Congress responded to this Court’s decision in McNally by enacting §1346, which revived only the intangible right of honest services, one of many intangible rights protected by courts under the fraud statutes pre-McNally. Congress’ silence regarding other such intangible interests forecloses the judicial expansion of the wire fraud statute to cover the intangible right to control. Finally, by treating