Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

This case is yet another example of overzealous prosecutors distorting the mail and wire fraud statutes – this time through the so-called “right-to-control” theory. That theory epitomizes the overcriminalization that plagues federal criminal law. It is an atextual invention of prosecutors that criminalizes a staggering amount of run-of-the mill dishonesty traditionally regulated, if at all, by States. And it eviscerates foundational due process protections. This Court has repeatedly rejected similarly aggressive interpretations of federal criminal statutes. The Court should do the same with the right-to-control theory.

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers in Support of Defendant-Appellant John Wilson and Reversal.

Argument: NACDL’s amicus brief argues that the federal fraud statutes protect only traditional concepts of property. The universities lost control over the composition of their incoming classes, which is not “property.” The “right to control” theory cannot salvage the property fraud convictions in this case. That theory does not apply here and, even if it did, the theory is doctrinally unsound. The government’s theory of property fraud has no limiting principle and would criminalize even the most trivial of deceptive conduct.

The National Association of Criminal Defense Lawyers’ Memorandum of Law Amicus Curiae in Support of Defendants.

Argument: A government’s exercise of its contracting authority is not a cognizable form of “money or property” under the federal mail, wire, or program fraud statutes charged. NACDL expressed its interest in maintaining the necessary limits on the federal fraud statutes that the Supreme Court has imposed time and again. Reducing and resisting overcriminalization is a core issue for NACDL, and this case presents an issue squarely within that mandate.

Letter with the Heritage Foundation to Senate Judiciary Committee Leadership regarding the redundancy of the Fraud Enforcement and Recovery Act (FERA) of 2009 (S. 386).

NACDL Board member Barry Pollack's written statement to the House Judiciary Committee regarding federal criminal fraud laws.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: A state government's right to regulate traffic flow does not qualify as "money or property" under this Court's applications of the mail fraud statute. The deception charged in this case -- lying about the motivation for state governmental policy -- is not cognizable as fraud under the mail fraud statute.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellants on rehearing en banc.

Argument: Requiring proof beyond a reasonable doubt that a defendant created a scheme or artifice to defraud “a person of ordinary prudence and comprehension” demarcates the boundary between conduct that is merely unethical and conduct that is unlawful and worthy of criminal prosecution.