Source: cases/18usc1341/f-supp-725-446-us-v-granberry.case
Case source: https://www.neochart.com/catalog/cases/f-supp/volume_725/0446_01/index.html
This involves inquiring not only whether the asserted interest enjoys some ascertainable value, but also whether it is capable of being marketed, and whether the interest is a commodity that is generally exchanged for value in the open market.
As the Court notes above, however, the interest in control must be focused upon some corresponding property right. Nothing in Carpenter suggests that control is in and of itself a property interest.
The Court finds that the remaining intangible interests alleged in the indictment are “too ethereal” to warrant the protection of the mail fraud statute.
This Court concludes that to find that the school district enjoyed a cognizable property right in controlling what type of person it paid wages would stand McNally on its head. The district enjoys no such property right.
If the state has no proprietary interest in bus operator’s permits, then it can have no property right in controlling their distribution.
The state, however, enjoys no property interest in licenses.
Likewise, the government’s claim that the state enjoyed any appreciable property interest in the piece of paper upon which defendant’s license was printed is patently absurd.
Processing this single permit did not deprive the state of its control over the allocation of resources.
This Court cannot conclude that the effort exerted by the Missouri Department of Revenue in processing a single application for a bus operator’s permit in the regular course of business has any measurable value for the purposes of qualifying as “property” meriting the protection of the mail fraud statute.
To summarize, this Court concludes that McNally and Carpenter stand for the proposition that a deprivation of property or an important right appurtenant thereto is required under the mail fraud statute.
If the property itself is not lost, however, there must at least be some deprivation of an important right that accompanies the property, whereby the property holder’s use and enjoyment of the property is diminished.
In the case at bar, the government makes no allegation that suggests that the school district was “deprived” of the wages paid to defendant.
Hence, this Court concludes that the indictment alleges no property deprivation under McNally and Carpenter and that it, therefore, fails to allege a violation of the mail fraud statute.
casedsl 1 case /f-supp/725/0446-01 name United States v. Granberry cite 725 F. Supp. 446 (1989) court United States District Court for the Eastern District of Missouri date 1989-11-15 url catalog/cases/f-supp/volume_725/0446_01/index.html source ir/caselaw/f_supp_725.jsonl sha1=05b1c4904fca2713cb5f25111a8cba6ac5ac0260 chars=36337 law 18usc1341 role applied posture criminal; two-count mail fraud re-indictment (false denial of a murder conviction on a school bus operator's permit application and job application); defendant's motion to dismiss the indictment for failure to allege a scheme to obtain "money or property" under McNally result claimant-lost element property : not-satisfied [pleaded] party Normandy School District (alleged victim) theory intangible right to control: who is hired, job distribution, tort liability, type of persons contracted with variant right-to-control/employer-control-over-whom-it-hires fact @3866..3996 [supports] | (4) Property of the Normandy School District being the exclusive control of who it hires to drive its children to and from school, fact @2596..2787 [supports] | The school district then hired defendant as a school bus driver, which the government claims would not have been the case had the school district known of defendant’s prior murder conviction. fact @19338..19469 [cuts-against] | Rather, they express only a desire for control over their general affairs; indeed, they seem to express a desire for control alone. rule @18407..18650 | This involves inquiring not only whether the asserted interest enjoys some ascertainable value, but also whether it is capable of being marketed, and whether the interest is a commodity that is generally exchanged for value in the open market. rule @19470..19668 | As the Court notes above, however, the interest in control must be focused upon some corresponding property right. Nothing in Carpenter suggests that control is in and of itself a property interest. held @20284..20437 | The Court finds that the remaining intangible interests alleged in the indictment are “too ethereal” to warrant the protection of the mail fraud statute. gloss Bare control over hiring decisions, job distribution and liability exposure is not "property" under McNally/Carpenter: control must attach to something traditionally recognized as property. element property : not-satisfied [pleaded] party Normandy School District (alleged victim) theory intangible right to control how its money is spent variant right-to-control/control-over-who-receives-budgeted-wages fact @3766..3865 [supports] | (3) Property of the Normandy School District being the exclusive control of how its money is spent, fact @23210..23324 [cuts-against] | The school district certainly must have allocated a certain amount of money for the purpose of paying bus drivers. fact @23562..23729 [cuts-against] | The district does not, in fact, object to how its money was spent. They wanted a bus driver, and that is precisely what they got. The district objects to who they got. held @24352..24572 | This Court concludes that to find that the school district enjoyed a cognizable property right in controlling what type of person it paid wages would stand McNally on its head. The district enjoys no such property right. gloss Money is property, but the indictment's intangible theory alleged loss of control over money already budgeted for bus drivers, not loss of money; the court likens it to the rejected good-government theory and contrasts a bank deciding to whom it lends. element property : not-satisfied [pleaded] party State of Missouri (alleged victim) theory state's control over distribution of bus operator's permits; the permit paper itself variant government-license/unissued-permit-in-hands-of-state fact @4720..4833 [supports] | (3) Property of the State of Missouri being the exclusive control of distribution of school bus operator permits, fact @2476..2595 [supports] | On August 27, 1988, the Department of Revenue mailed defendant’s bus operator’s permit to the Normandy School District. rule @20980..21117 | If the state has no proprietary interest in bus operator’s permits, then it can have no property right in controlling their distribution. held @20527..20587 | The state, however, enjoys no property interest in licenses. held @25897..26071 | Likewise, the government’s claim that the state enjoyed any appreciable property interest in the piece of paper upon which defendant’s license was printed is patently absurd. gloss The state's interest in a license is regulatory, not proprietary (a license has value only to the licensee); the physical permit paper is de minimis. element property : not-satisfied [pleaded] party State of Missouri (alleged victim) theory control over allocation of processing resources; money cost of processing the fraudulent application variant regulatory-cost/routine-cost-of-processing-one-application fact @4584..4719 [supports] | (2) Money of the State of Missouri in the form of expenses and costs of processing a fraudulent school bus operator permit application, fact @22486..22641 [cuts-against] | In the case at bar, the state had allocated resources for the purpose of processing bus operator’s permits long before defendant submitted his application. fact @24930..25067 [cuts-against absent] | Defendant certainly did not “obtain”, nor does the government suggest that defendant sought to “obtain”, the state’s processing expenses. fact @25290..25522 [cuts-against absent] | The government fails, however, to suggest an amount representing the expenses incurred by the state or even that the cost incurred by a government agency in processing a single application of this sort is susceptible of calculation. held @22833..22937 | Processing this single permit did not deprive the state of its control over the allocation of resources. held @25590..25896 | This Court cannot conclude that the effort exerted by the Missouri Department of Revenue in processing a single application for a bus operator’s permit in the regular course of business has any measurable value for the purposes of qualifying as “property” meriting the protection of the mail fraud statute. gloss Two rulings merged: (a) no deprivation of control over resource allocation because the processing machinery was already in place; (b) the processing cost itself was not sought by the defendant and has no measurable value. element property : not-satisfied [pleaded] party Normandy School District (alleged victim) theory tangible money: wages paid to the defendant variant bargained-for-payment/wages-for-services-actually-performed fact @3554..3624 [supports] | (1) Money from the Normandy School District in the form of wages paid, fact @26316..26488 [cuts-against] | It is irrefutable that the school district suffered no financial injury. The school district paid wages for the services of a bus driver; defendant provided these services. fact @29584..29741 [cuts-against absent] | The government does not suggest that defendant did not perform the service of driving a bus for Normandy School District in return for the wages he received. fact @29742..29917 [cuts-against absent] | Nor does the government suggest that defendant was so poorly qualified to perform the service of driving school buses that the district somehow received less than it paid for. rule @28757..28959 | To summarize, this Court concludes that McNally and Carpenter stand for the proposition that a deprivation of property or an important right appurtenant thereto is required under the mail fraud statute. rule @29226..29442 | If the property itself is not lost, however, there must at least be some deprivation of an important right that accompanies the property, whereby the property holder’s use and enjoyment of the property is diminished. held @29443..29583 | In the case at bar, the government makes no allegation that suggests that the school district was “deprived” of the wages paid to defendant. held @30242..30428 | Hence, this Court concludes that the indictment alleges no property deprivation under McNally and Carpenter and that it, therefore, fails to allege a violation of the mail fraud statute. gloss Wages are money, but the court requires a "deprivation": the district got the bus-driving services it paid for, so obtaining wages by a false application is held not to be a property fraud. The court also rejects the argument (Thomas, Cooper) that the "obtaining money or property by false pretenses" clause dispenses with deprivation. This equivalent-value reasoning is in tension with the law file's fraudulent-inducement variant and its Kousisis not-required note. gloss CAVEAT: dated authority. This 1989 district-court holding rests on a deprivation / no-financial-injury requirement that the law file's own property rules (Kousisis: no net-economic-loss requirement; fraudulent-inducement variant: equivalent value in return is not dispositive) appear to reject. Read it as a historical instance, not as a current statement of the property element. element scheme : not-reached gloss The lie on the application is taken as alleged; the court decides only that its object was not property. It adds, as a policy observation, that a single false statement on a mailed application should not be a federal mail fraud. element materiality : not-reached element intent : not-reached element mails : not-reached gloss Two mailings alleged (district mailed the application to the Department of Revenue; the Department mailed the permit back); not contested. element furtherance : not-reached misfit Known (good-law flag): the wage holding rests on a deprivation / no-financial-injury requirement that the law file's own property rules (Kousisis: no net-economic-loss requirement; fraudulent-inducement variant) appear to reject; the block still counts as a not-satisfied instance and is flagged only by a CAVEAT gloss. Conversely the right-to-control blocks anticipate Ciminelli. Nothing in the structured notation dates or flags either. misfit One element (`property`) is decided ten times over: the indictment lists ten property interests of two victims. They are grouped into five blocks by theory; `party` here names the alleged VICTIM, not a defendant, and the typed qualifier cannot say so. misfit The court splits `property` into two questions - is the interest property at all, and was the victim deprived of it (or of an important right appurtenant) - and decides some interests on one and some on the other. No sub-ids (property.interest / property.deprivation) are declared; the split lives in gloss. misfit Basis [pleaded] with not-satisfied covers "indictment insufficient on its face"; the fact lines are the indictment's enumerated allegations and the court's own characterisations of them, not findings. The cuts-against lines in the control blocks are partly the court's reasoning about the allegations rather than real-world facts. misfit This is a re-indictment after an earlier dismissal on the same ground (Granberry I); the relation between the two indictments, and the defendant's unreached argument that the Missouri disqualification statute is unconstitutional, have no slot.