Opinion of the Court
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).[1]
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
- ↑ At least two Circuits have expressly repudiated the right-to-control theory of wire fraud. United States v. Sadler, 750 F. 3d 585, 590–592 (CA6 2014); United States v. Bruchhausen, 977 F. 2d 464, 467–469 (CA9 1992). Several other Circuits have embraced the theory to varying degrees. See, e.g., United States v. Gray, 405 F. 3d 227, 234 (CA4 2005) (collecting cases).
