QUERY: Whether a fiduciary duty or relationship is a necessary
ingredient to frauds relating to intangible property rights. See
generally Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire
31 Am. Crim. L. Rev. 703, 706 n. 19 (1994) ("Unlike traditional frauds which
arise regardless of the relationship between the defendant and the victim,
related to intangible rights stem from a fiduciary relationship between the
defendant and the defrauded party or entity."). "At the core of the
defined 'scheme to defraud' is the notion of a trust owed to another and a
subsequent breach of that trust." United States v. Lemire, 720 F.2d
1335 (D.C. Cir. 1983) ("But '[n]ot every breach of a fiduciary duty works a
criminal fraud.'") (quoting United States v. George, 477 F.2d 508
Cir.), cert. denied, 414 U.S. 827 (1973)), cert. denied, 467
1226 (1984). But cf. United States v. Sawyer, 878 F.
279, 288-90 (D. Mass. 1995) (mail fraud statutes do not require that a
fiduciary be a participant in the scheme). It may follow that to defraud
the "right to honest services" would generally require a fiduciary
that creates the right to provide or protect honest services. It does not
necessarily follow, however, that the existence or protection of an
property right must depend upon the existence of a fiduciary relationship or
duty. Nonfiduciaries can steal, embezzle and defraud others of property
interests, regardless of whether the property interest is tangible or
Cf. United States v. Allen, 554 F.2d 398, 410 (10th Cir.)
the existence of a fiduciary duty is relevant and an ingredient in some mail
fraud prosecutions, . . . it is not an essential in all such cases.")
omitted), cert. denied, 434 U.S. 836 (1977); Eilers & Silikovitz, 31
Crim. L. Rev. at 711 ("There is some debate in the Circuit Courts about
intangible rights can be violated if they are not premised upon fiduciary
Courts have held nonfiduciaries criminally liable for frauds
to intangible rights when a co-schemer or co-conspirator was a fiduciary.
See United States v. Alexander, 741 F.2d 962, 964 (7th Cir.
(an intangible rights scheme is cognizable when at least one of the schemers
a fiduciary relationship with the defrauded person or entity), overruled
other grounds by, United States v. Ginsburg, 773 F.2d 798 (7th
1985), cert. denied, 475 U.S. 1011 (1986); see also
878 F. Supp. at 289 (describing situation of nonfiduciary) (citing United
States v. Margiotta, 688 F.2d 108, 121-23 (2d Cir. 1982), cert.
denied, 461 U.S. 913 (1983), and Alexander, 741 F.2d at 964).
[cited in USAM 9-43.100]