Document Type

Article

Publication Date

Spring 2024

Abstract

Federal prosecutors' mantra is “when in doubt, charge wire fraud.” Section 1343 can be applied to any scheme to defraud--a capacious term that encompasses everything from computer scams to bribery and smuggling--in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality--especially that conducted by wire--the geographic scope of the statute is of great practical importance. This Article resolves a circuit split by applying the Supreme Court's presumption against extraterritoriality and concluding that nothing in § 1343 rebuts that presumption. It then attempts to answer the critical question of what constitutes an acceptably “domestic” case as opposed to a forbidden “extraterritorial” one. For example, consider the FIFA corruption case in which foreign entities allegedly bribed foreign soccer officials to secure foreign broadcasting rights to foreign soccer matches. Will the fact that the bribes were wired from a New York bank account suffice to make this an acceptably domestic prosecution? According to the Supreme Court, one resolves such questions by identifying if there is conduct occurring within U.S. territory that is the “focus” of the statute. The lower courts have largely identified the “focus” of the statute to be the wiring element, such that regardless of the location of perpetrators, the victims, or the fraudulent conduct, the fact that a wiring crosses a U.S. border means that federal prosecutors can pursue the case. The answer, then, in the FIFA corruption cases was “yes,” but should it have been?

Given that the overwhelming majority of federal criminal statutes do not speak to their geographic scope and the strength of the Court's presumption against extraterritoriality, the applicability of most federal criminal statutes to transborder conduct will turn on what courts determine the statutes' focus to be. The literature is filled with critiques of the Court's presumption, but almost no attention has been paid to the “focus” test. This Article, then, fills a serious gap in the literature by scrutinizing the Court's novel “focus” test and demonstrating not only that the test ignores the common-law approach and the Court's own traditional elements-based analysis but also that it is fatally subjective, unworkable, and arbitrary in its results. The lower courts' analysis of the statutory focus is often cursory and reliant on inapposite caselaw. This Article addresses this analytical deficiency by identifying a taxonomy of criteria that ought to be applied to federal statutes to determine their focus and illustrating how these criteria are applied by reference to the wire fraud statute.

Finally, this Article makes the case that the reason the courts have thus far failed to identify a textually sound and practically sensible “focus” for § 1343 lies not only in the flawed “focus” test but also in the incoherency of the wire fraud offense resulting from the Supreme Court's disregard of the statutory text. This Article critiques the Court's rewriting of § 1343 to eliminate both the mens rea mandated by Congress and the statute's requirement that the wiring have a close nexus to the furthering of the fraud, a change that applies to all wire fraud cases, not just transnational prosecutions. This Article demonstrates, by reference to criminal law theory, that § 1343 is not a crime at all, at least measured by traditional requirements. To return to the “focus” test, it is the Supreme Court's misinterpretation of the statute that requires the lower courts' nonsensical conclusion that the “focus” of a criminal prohibition is an unknowing, unintentional act that is innocent on its face and has no necessary connection to the execution of the culpable scheme.

Publication Citation

American Criminal Law Review, Vol. 61, No. 2, Pp. 251-327.

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