U.S. Supreme Court Takes Wire Fraud Case

The U.S. Supreme Court will delve once again into the meaning of “wire fraud” in federal criminal cases. Today the Court granted certiorari in Kousisis v. United States, No. 23-909. The Question Presented as stated in the Government’s Brief in Opposition is:

Whether sufficient evidence supported petitioners’ convictions for conspiring to commit wire fraud, in violation of 18 U.S.C. 1349, and wire fraud, in violation of 18 U.S.C. 1343 and 1349, where they falsely certified compliance with a requirement that they subcontract to a disadvantaged business and, as a result, overcharged the government entity with which they contracted.

The more verbose version in the petition for certiorari is:

Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme.

Whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services.

Whether all contract rights are “property.”

John Elwood at SCOTUSBlog had this description of the case in his Relist Watch last week:

Similarly, to permit them to do public works projects in the Philadelphia area, Stamatios Kousisis and his company, Alpha Painting & Construction Co., Inc., used as a front a company that qualified as a “disadvantaged business enterprise,” though the DBE performed no actual work. Kousisis was convicted at trial. On appeal, he raised the same claim as Porat [another case summarized in the same post], arguing that the schemes did not constitute mail or wire fraud because they were not intended to cause economic harm, and he also argued that because the DBE’s involvement was intangible, Kousisis and Alpha did not actually defraud the government of any “property,” as federal law requires. The 3rd Circuit rejected his claims and affirmed his conviction.

Of course, many people believe that the whole DBE preference business is a crock, and the government should simply get rid of it. But that is not the question presented.

The high court’s apparent lack of interest in the constitutional criminal procedure cases that once made up a large part of its docket is frustrating. With a solid majority finally in place who are dedicated to the real Constitution that the people actually adopted, there are large piles of pseudo-constitutional barriers to justice that could be corrected. Yet the majority doesn’t seem to be much interested.