Source: cases/18usc1341/f3d-29-112-us-v-henry.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_29/0112_01/index.html
Thus, to determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.
Violation of this condition may have affected each bidding bank’s possible future receipt of property, but that does not make the condition property.
The issue, therefore, is whether the competing banks’ interest in having a fair opportunity to bid for something that would become their property if and when it were received is in itself property. We conclude that it is not.
In sum, we conclude that the indictment against Henry and Mike does not allege a scheme to defraud its victims of a property right and therefore does not state offenses under the federal fraud statutes.
The fraudulent deprivation of a reasonable expectation to secure an economic advantage falls within the proscriptions of the federal fraud statutes.
Unlike the majority, I believe that the unsuccessful banks had a sufficient property interest in a legitimate bidding process to support the fraud charges here.
The government now argues that Henry’s and Mike’s scheme also defrauded the Commission of.its confidential business information and the right to control how its money was invested, but these theories were not advanced in the indictment and cannot save it on appeal.
.Because the loss of control theory was not alleged, we need not decide whether such a deprivation satisfies McNally.
Under McNally and Carpenter, a government official’s breach of his or her obligations to the public or an employee’s breach of his or her obligations to an employer cannot violate the fraud statutes.
Therefore, to state an offense under the federal fraud statutes, the indictment against Henry and Mike must allege a scheme that meets McNally’s standards.
casedsl 1
case /f3d/29/0112-01
name United States v. Henry
cite 29 F.3d 112 (1994)
court United States Court of Appeals for the Third Circuit
date 1994-07-12
url catalog/cases/f3d/volume_29/0112_01/index.html
source ir/caselaw/f3d_29.jsonl sha1=e827fc8910fdf214ff78f294e2dd1b9dd9a8532a chars=31152
law 18usc1341
role background
posture criminal; government appeal from dismissal of a 21-count indictment (18 U.S.C. 371 conspiracy to commit mail, wire and bank fraud; ten 1344 counts; ten 1343 counts) arising from rigged bidding for a bridge commission's deposits; no substantive 1341 count; the McNally money-or-property requirement is decided once for all three fraud statutes; divided panel
result claimant-lost
element property : not-satisfied [pleaded]
party competing bidding banks (alleged victims)
count all counts (conspiracy with mail fraud as an object; wire fraud; bank fraud)
theory losing bidders' interest in a fair and honest opportunity to bid
opinion majority
variant intangible-expectancy/fair-opportunity-to-bid-for-contract-not-yet-awarded
fact @2255..2462 [supports] | According to the indictment, on ten occasions Henry disclosed bid information to Mike and another individual in the Auditor General’s office, who in turn disclosed it to a representative of one bank, Bank A.
fact @2463..2647 [supports] | Bank A was thus allegedly able to narrowly outbid the other banks by offering a slightly higher rate of interest and, as a result, received deposits of $34,278,000 in Commission funds.
fact @8008..8216 [cuts-against] | Here, however, the money had not yet been deposited, and there is no way of knowing to which, if any, of the bidding banks it would have gone. Even in a fair process, Bank A might still have won the deposits.
fact @15618..15829 [cuts-against] | Just as the insurance commissions in McNally were not from the Commonwealth, the benefits Bank A and Mike received were not from the competing banks, and therefore those benefits cannot save the indictment here.
rule @8995..9184 | Thus, to determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.
rule @10241..10390 | Violation of this condition may have affected each bidding bank’s possible future receipt of property, but that does not make the condition property.
held @8217..8442 | The issue, therefore, is whether the competing banks’ interest in having a fair opportunity to bid for something that would become their property if and when it were received is in itself property. We conclude that it is not.
held @15835..16037 | In sum, we conclude that the indictment against Henry and Mike does not allege a scheme to defraud its victims of a property right and therefore does not state offenses under the federal fraud statutes.
gloss CHARGED: 18 U.S.C. 371 (conspiracy whose objects were mail, wire and bank fraud), ten 1344 bank fraud counts and ten 1343 wire fraud counts; there is NO substantive 1341 count. The court construes the money-or-property requirement common to "the federal fraud statutes" and applies it to those counts, so this block is a cross-statute construction (case-level role background), not a 1341 instance; the holding is kept as the court's ruling on the indictment actually before it.
gloss A fair bidding process is a valuable condition but not a traditionally recognized, enforceable property right (no right of exclusion). Tangible gains to the schemers (deposits, a car loan, campaign contributions) are irrelevant because they did not come from the alleged victims. Ashman's open-outcry ruling is treated as indistinguishable.
element property : satisfied [pleaded]
scope dissent
party competing bidding banks (alleged victims)
theory reasonable expectancy of a prospective contract (tortious-interference analogy)
opinion Weis, J., dissenting
variant intangible-expectancy/fair-opportunity-to-bid-for-contract-not-yet-awarded
fact @27036..27231 [supports] | The allegations in the indictment make it clear that in each instance the bank that submitted the highest legitimate bid would have received the Commission’s money, but for the defendants’ fraud.
fact @24735..24936 [supports] | This is demonstrated by the fact that the unsuccessful bidder would have had a civil remedy against these defendants and Bank A for the tortious interference with prospective contractual relationships.
rule @28996..29144 | The fraudulent deprivation of a reasonable expectation to secure an economic advantage falls within the proscriptions of the federal fraud statutes.
held @23637..23797 | Unlike the majority, I believe that the unsuccessful banks had a sufficient property interest in a legitimate bidding process to support the fraud charges here.
element property : not-reached
scope procedural
party the Commission (alternative victim urged on appeal)
theory Commission's confidential business information; Commission's right to control how its money is invested
opinion majority
variant right-to-control/theory-not-charged-in-indictment
fact @16659..17120 [cuts-against] | Bid-rigging by public officials typically results in a government entity paying more than it otherwise would have for goods or services, see, e.g., United States v. Osser, 864 F.2d 1056, 1062-63 (3d Cir.1988), United States v. Asher, 854 F.2d 1483, 1495-96 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989), but the Commission allegedly made money here, receiving a higher interest rate on its deposits as a result of the scheme.
held @6764..7029 | The government now argues that Henry’s and Mike’s scheme also defrauded the Commission of.its confidential business information and the right to control how its money was invested, but these theories were not advanced in the indictment and cannot save it on appeal.
held @17121..17238 | .Because the loss of control theory was not alleged, we need not decide whether such a deprivation satisfies McNally.
gloss Not decided: property theories absent from the indictment cannot be raised on appeal. The court expressly reserves whether loss of the right to control money satisfies McNally.
element honest-services-boundary : not-reached
scope procedural
party Henry (Commission comptroller) and Mike (state official)
theory breach of a public official's duties to the public and the Commission
opinion majority
variant temporal-reach/conduct-before-section-1346-effective-date
fact @3293..3426 [supports] | The indictment asserted that in rigging the bids, “Henry violatefd] his fiduciary duty and Commission custom, practices and policies”
fact @5297..5437 [cuts-against] | It did not become effective until November 18, 1988, well after the bid-rigging alleged in the indictment ceased, and it is not retroactive.
rule @5904..6103 | Under McNally and Carpenter, a government official’s breach of his or her obligations to the public or an employee’s breach of his or her obligations to an employer cannot violate the fraud statutes.
held @5587..5742 | Therefore, to state an offense under the federal fraud statutes, the indictment against Henry and Mike must allege a scheme that meets McNally’s standards.
gloss Real ruling: NON-RETROACTIVITY of the honest-services amendment (printed "18 U.S.C. § 1364" in the source; § 1346 is meant) - it took effect on 18 November 1988, after the 1986-88 conduct, so the indictment must meet McNally and the fiduciary-breach allegations cannot carry it. A temporal-reach ruling, not a decision on whether the conduct would be honest-services fraud (bribery or kickbacks are never examined); hence not-reached, scope procedural. The fact polarities only mark which way each line cuts on the availability of the 1346 route.
element scheme : not-reached
gloss The bid-rigging plan is taken as alleged ("although unethical"); only its object was in issue.
element materiality : not-reached
element intent : not-reached
element mails : not-reached
gloss No substantive mail fraud count; mail fraud appears only as an object of the 371 conspiracy, and no mailing is described.
element furtherance : not-reached
misfit Sibling statutes / role: the indictment has no substantive 1341 count (371 conspiracy to commit mail, wire and bank fraud; 1343; 1344). The court decides the shared "money or property" requirement once for "the federal fraud statutes"; the file is therefore `role background` and no block is a 1341 instance. The majority property block keeps `not-satisfied [pleaded]` (a real ruling on the indictment, but under the conspiracy, wire and bank fraud counts); the notation cannot say "construed via identical language of sibling statutes" or point to the statutes actually charged. `result claimant-lost` is the dismissal of that indictment, not of a 1341 count.
misfit `honest-services-boundary` is a boundary node, not a conjunct. The ruling recorded is non-retroactivity of the honest-services amendment, which has no holding value of its own; recorded as not-reached / scope procedural with the ruling named in the gloss. The block has no `rule` line for the temporal point (the effective-date sentence is a fact line).
misfit The reserved question (does loss of the right to control money satisfy McNally?) is a not-reached block with held quotes but no rule; "expressly reserved" has no holding value (known item 2/5). Third Circuit precedent pointing both ways (Zauber, Martinez) is cited in the footnote.
misfit Known: `party` holds the alleged victim rather than a defendant; here the identity of the victim (losing bidders vs. the Commission) is the whole case, and a victim qualifier is missing.
misfit Known (good-law flag): right-to-control was later rejected in Ciminelli and bid-rigging victims analysed differently elsewhere; nothing dates this 1994 ruling.
misfit The dissent's key facts are legal characterisations (a civil remedy would lie) rather than events; tagged [supports] as the nearest fit. Footnotes are appended to the IR text mid-paragraph (footnote 2 is spliced into the paragraph at offset 6370), so one sentence of the majority is split across two paragraphs and could not be quoted whole.