/f2d/844/0036-01

United States Court of Appeals for the Second Circuit · 1988-04-07

Original case on neochart.com

Case and law context

18 U.S.C. § 1343

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; claim:

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f2d/844/0036-01 — United States Court of Appeals for the Second Circuit · 1988Traditional money or property as an objectnot
Counted merits instance
applied / merits

basis: pleaded; theory: the arms and the sales commissions as the money or property obtained; subject: theory=the arms and the sales commissions as the money or property obtained

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.
victim-property-interest/deceived-government-owns-neither-goods-nor-money
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.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Moreover, the “money” involved — the commissions — was to be paid by the recipient governments, not by the United States.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

However, the government also stated at oral argument that it would not attempt to prove its ownership at trial.
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Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

To win, the government must show that it had some property interest in the arms.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Thus, unless we accept the alienation theory, the judgment below should be affirmed under the interpretation of the federal fraud statutes previously set out.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f2d/844/0036-01 — United States Court of Appeals for the Second Circuit · 1988Traditional money or property as an objectnot
Counted merits instance
applied / merits

basis: law; theory: alienation theory: the United States' right to veto retransfer of U.S.-made or licensed arms as "property"; subject: theory=alienation theory: the United States' right to veto retransfer of U.S.-made or licensed arms as "property"

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.
regulatory-interest/government-veto-over-resale-of-goods-it-does-not-own
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).
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
Source: docroot/ir/caselaw/f2d_844.jsonl#/f2d/844/0036-01; Unicode character offsets [18563:18724] (end exclusive); SHA-256 fa5732cb4799e9e5b3ca064860af71674fc030739b35dda6d139659dbd32cb4c.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

A law prohibiting a particular use of a commodity that the government does not use or possess ordinarily does not create a property right.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

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.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f2d/844/0036-01 — United States Court of Appeals for the Second Circuit · 1988Scheme or artifice to defraudnot_reached
Excluded from merits counts
applied / merits

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.
Unspecified variantNo source quotation recorded for this block.

Court interpretations recorded from this case