Page:Ciminelli v. United States.pdf/10

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Cite as: 598 U. S. ____ (2023)

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Opinion of the Court

cite no authority that established “potentially valuable economic information” as a traditionally recognized property interest. See Wallach, 935 F. 2d, at 462–463.^[1] 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 only judicial authority the Second Circuit cited for this key proposition was a 1989 Fifth Circuit opinion that conclusorily asserted that “[t]he economic value of … knowledge” was “sufficient ‘property’ to implicate” the mail fraud statute, and that appears to have misunderstood 18 U. S. C. §1346 as “eliminating the requirement of property loss” in all cases. United States v. Little, 889 F. 2d 1367, 1368–1369. The Second Circuit then proceeded to rely on the “bundle of sticks” metaphor of property rights. See United States v. Wallach, 935 F. 2d 445, 463 (1991) (“[G]iven the important role that information plays in the valuation of a corporation, the right to complete and accurate information is one of the most essential sticks in the bundle of rights that comprise a stockholder’s property interest”). But that metaphor—whatever its merits in other contexts—cannot compensate for the absence of an interest that itself “has long been recognized as property,” Carpenter v. United States, 484 U. S. 19, 26 (1987), particularly in light of our rejection of attempts to construe the federal fraud statutes “in a manner that leaves [their] outer boundaries ambiguous.” McNally v. United States, 483 U. S. 350, 360 (1987). As noted above, the right to information necessary to make informed economic decisions, while perhaps useful for protecting and making use of one’s property, has not itself traditionally been recognized as a property interest.

[1] The only judicial authority the Second Circuit cited for this key proposition was a 1989 Fifth Circuit opinion that conclusorily asserted that “[t]he economic value of … knowledge” was “sufficient ‘property’ to implicate” the mail fraud statute, and that appears to have misunderstood 18 U. S. C. §1346 as “eliminating the requirement of property loss” in all cases. United States v. Little, 889 F. 2d 1367, 1368–1369. The Second Circuit then proceeded to rely on the “bundle of sticks” metaphor of property rights. See United States v. Wallach, 935 F. 2d 445, 463 (1991) (“[G]iven the important role that information plays in the valuation of a corporation, the right to complete and accurate information is one of the most essential sticks in the bundle of rights that comprise a stockholder’s property interest”). But that metaphor—whatever its merits in other contexts—cannot compensate for the absence of an interest that itself “has long been recognized as property,” Carpenter v. United States, 484 U. S. 19, 26 (1987), particularly in light of our rejection of attempts to construe the federal fraud statutes “in a manner that leaves [their] outer boundaries ambiguous.” McNally v. United States, 483 U. S. 350, 360 (1987). As noted above, the right to information necessary to make informed economic decisions, while perhaps useful for protecting and making use of one’s property, has not itself traditionally been recognized as a property interest.

[1]