Tangible Versus Intangible Property Rights
In Carpenter, 484 U.S. 19, 25 (1987), the Court confirmed
"McNally did not limit the scope of § 1341 to tangible as
distinguished from intangible property rights." The Court held that the
intangible nature of "confidential business information" does not make it
less "property" protected by the mail and wire fraud statutes. Id.
Carpenter accordingly distinguished intangible property rights, which
still protected by the mail and wire fraud statutes, and intangible
rights, which were not protected. Cf. United States v.
F.2d 1327, 1336 (D.C. Cir. 1983) ("[A]lthough the scheme to defraud must
some cognizable harm to its target, that harm need not be a deprivation of
tangible property or money; criminal fraud encompasses schemes to defraud
of significant intangibles as well."), cert. denied, 467 U.S. 1226
QUERY: Whether interests such as contract rights, licenses,
trade secrets, franchises, government grants, goodwill, market share, etc.,
intangible or tangible property rights that can be the subject of a mail or
fraud violation. See, e.g., Carpenter, 484 U.S. at 25
that contractual right to honest and faithful services is too ethereal in
to fall within the protection of the mail fraud statute); United States
DeFries, 43 F.3d 707, 709-11 (D.C. Cir. 1995) (union ballots are
property); United States v. Henry, 29 F.3d 112, 114-15 (3d Cir. 1994)
(fair bidding opportunity is not a property right); United States v. F.J.
Vollmer & Co., 1 F.3d 1511, 1521 (7th Cir. 1993) ("It is well
that the government's regulatory interests are not protected by the mail
statute.") (citing cases concerning licenses and permits), cert.
114 S.Ct. 688 (1994); United States v. Loney, 959 F.2d 1332, 1336
Cir. 1992) (flight award coupons are property); United States v.
912 F.2d 1486, 1492 (D.C. Cir. 1990) (a FHA insurance commitment, by which
Government promises to pay the lender if the borrower defaults on the loan,
a "property interest," not an "intangible right" because it involves the
Government's "control over how its money [is] spent."), cert. denied,
U.S. 1105 and 498 U.S. 1110 (1991). The United States Court of Appeals for
District of Columbia's decision in DeFries provides a brief survey of
cases finding property interests in permits, city liquor licenses, medical
licenses and other items. See generally, 43 F.3d at 709-10 and n. 2;
see also Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire
Fraud, 31 Am. Crim. L. Rev. 703, 706-11 (1994) (discussing "traditional
frauds" and "frauds involving intangible rights").
QUERY: How to determine whether an interest is property? See,
e.g., United States v. D'Amato, 39 F.3d 1249, 1258 (2d Cir. 1994)
(shareholder's property rights to information are defined by state law and
law of fraud); cf. Henry, 29 F.3d at 115 ("[T]o determine
a particular interest is property for purposes of the fraud statutes, we
whether the law traditionally has recognized and enforced it as a property
right."); see also Eilers & Silikovitz, 31 Am. Crim. L. Rev. at 706
[cited in USAM 9-43.100]