Introductionįor many decades, federal prosecutors have applied criminal statutes to increasingly ambiguous conduct, pushing the limits of the statutory elements and theories of criminality to encompass behavior they deem wrongful. Such repudiation will be critical to returning the law of fraud to its core purpose of prohibiting the wrongful taking of property and realigning it with the Due Process Clause’s demand for clear notice of criminal laws. United States suggests that, when the Court addresses the right to control theory, it will reject the confused thesis. The Supreme Court’s recent unanimous decision in Kelly v. The doctrine thus effectively flouts the principle that mere deceit cannot suffice for fraud convictions. It confuses the right to control assets, which is normally thought to be an attribute of ownership of property, with the property itself, resulting in a conflation of the separate elements of “property,” “intent to harm,” and “materiality.” A material misrepresentation about an economic factor can satisfy all three elements simultaneously.
This Article examines the theory and argues that it is flawed on multiple levels. It holds that one’s “right to control” his or her assets qualifies as “property.” Thus, even if defendants did not intend harm, they may be convicted if they withheld from the putative victims “potentially valuable economic information,” thereby depriving them of their right to control their assets. The so-called “right to control” theory of fraud is arguably the most extreme (and successful) of these theories. It is supposed to be well established that mere deceit is insufficient to convict someone of fraud and that there must also be proof the defendant intended to cause harm to a victim’s “money or property.” Yet, for many decades, federal prosecutors have persisted in pushing expansive theories of criminality to encompass all forms of deceptive behavior, even where the defendants intended no pecuniary harm.
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