Source: cases/18usc1343/f2d-844-36-us-v-evans.case
Case source: https://www.neochart.com/catalog/cases/f2d/volume_844/0036_01/index.html
To win, the government must show that it had some property interest in the arms.
The point is not that the defendant must receive the same money or property that the deceived party lost, but only that the party deceived must lose money or property.
Thus, unless we accept the alienation theory, the judgment below should be affirmed under the interpretation of the federal fraud statutes previously set out.
A law prohibiting a particular use of a commodity that the government does not use or possess ordinarily does not create a property right.
That the right at issue here has not been treated as a property right in other contexts, and that there are many basic differences between it and common-law property are relevant considerations in deciding whether the right is property under the federal fraud statutes.
Because of the substantial differences between international arms sales and common-law property transactions, we conclude that the United States’s interest in regulating foreign resales of arms is not a property right for wire and mail fraud purposes.
casedsl 1 case /f2d/844/0036-01 name United States v. Evans cite 844 F.2d 36 (1988) court United States Court of Appeals for the Second Circuit date 1988-04-07 url catalog/cases/f2d/volume_844/0036_01/index.html source ir/caselaw/f2d_844.jsonl sha1=5808b6b0f69c472981b5aad911caeb9701a2b627 chars=24403 law 18usc1343 role applied posture criminal; pretrial dismissal of 44 wire fraud and 2 mail fraud counts of an indictment (scheme to sell U.S.-origin arms to Iran using false end-user certificates); government interlocutory appeal under 18 U.S.C. 3731 result claimant-lost element property : not-satisfied [pleaded] theory the arms and the sales commissions as the money or property obtained variant victim-property-interest/deceived-government-owns-neither-goods-nor-money fact @13722..13972 [supports] | The closest it comes is when it half-heartedly argues that the indictment implies that the United States owned all of the rights in at least some of the weapons at some point, since certain types of weapons legally may be sold only by the government. fact @5054..5378 [cuts-against absent] | Specifically, defendants pointed out that the “property” involved— the weapons — is not alleged to belong to the United States; evidently, some of the weapons were sold directly by their manufacturers to foreign governments, and even those that may have once belonged to the United States are now owned by foreign countries. fact @5379..5500 [cuts-against] | Moreover, the “money” involved — the commissions — was to be paid by the recipient governments, not by the United States. fact @13973..14084 [cuts-against absent] | However, the government also stated at oral argument that it would not attempt to prove its ownership at trial. rule @13619..13699 | To win, the government must show that it had some property interest in the arms. rule @12874..13041 | The point is not that the defendant must receive the same money or property that the deceived party lost, but only that the party deceived must lose money or property. held @14363..14521 | Thus, unless we accept the alienation theory, the judgment below should be affirmed under the interpretation of the federal fraud statutes previously set out. gloss The indictment named as objects the weapons (owned by foreign countries) and commissions (payable by the buying governments). The court expressly declines to decide the general question whether the deceived party must always be the one who loses property; it rests on McNally's statement that the Government is protected only as property-holder, and the United States, the only party deceived, alleged no property of its own. element property : not-satisfied [law] theory alienation theory: the United States' right to veto retransfer of U.S.-made or licensed arms as "property" variant regulatory-interest/government-veto-over-resale-of-goods-it-does-not-own fact @6068..6310 [supports] | These restrictions are created either by a statutorily-required clause in the contract between the United States seller and the original foreign buyer, see 22 U.S.C. § 2753(a)(2), or by regulation, see, e.g., 22 C.F.R. §§ 123.9(a), 123.10(d). fact @18563..18724 [cuts-against] | However, the United States will never have the right to possess the weapons involved in this case, even if a foreign government violates the resale restrictions. fact @18892..19034 [cuts-against] | The government concedes that the violations have no effect on the purchaser’s title or on the seller’s right to profits from the illegal sale. rule @22042..22180 | A law prohibiting a particular use of a commodity that the government does not use or possess ordinarily does not create a property right. rule @18062..18331 | That the right at issue here has not been treated as a property right in other contexts, and that there are many basic differences between it and common-law property are relevant considerations in deciding whether the right is property under the federal fraud statutes. held @23586..23837 | Because of the substantial differences between international arms sales and common-law property transactions, we conclude that the United States’s interest in regulating foreign resales of arms is not a property right for wire and mail fraud purposes. gloss Decided on the assumption (not decided) that the indictment alleges this theory at all. The interest is "ancillary to a regulation, not to property": no possessory right ever, no effect on title, enforcement only by statutory sanctions on future sales; rule of lenity applied. The court does not say the Government never has property in limits it imposes on property use. element scheme : not-reached gloss The deception itself (false end-user certificates and false statements to the State and Defense Departments about the arms' destination) is alleged and not questioned; the counts fail only for want of a property interest of the deceived party. misfit The first block decides a RELATION (whose property: the party deceived must be the one whose money or property is the object, at least where the Government is the victim), not whether something is property. No declared id or constraint for victim-identity / convergence; recorded under `property` with a theory qualifier. The court also leaves the general rule open while applying it to the Government, which a single holding cannot show. misfit Basis strain: block 1 is [pleaded] (indictment on its face plus the government's oral-argument disclaimer of proof of ownership, which is not a pleading); block 2 is [law] but rests on an "even assuming the indictment alleges it" premise, i.e. arguendo as to the pleading and decided as to the law. One basis per block; known gap. misfit Mail fraud counts 49-50 (18 U.S.C. 1341) are decided by the same analysis; only the 1343 side is recorded. The Fifth Amendment grand-jury objection to considering the alienation theory is expressly not decided and has no id. misfit No good-law flag: the "regulatory interest is not property" holding anticipates Cleveland and Kelly; the reserved whose-property question has later history that the notation cannot point to (known gap 10).