3 Critical Steps to Take Today If You Face Federal Fraud Charges After This Ruling

1. The New "Property" Definition Changes Everything—Challenge the Indictment's Core Element Now

In my 25 years as a federal prosecutor, I never saw the Supreme Court fundamentally redefine the "property" element of federal fraud statutes as it did in the recent ruling. The Court held that for purposes of 18 U.S.C. § 1343 (wire fraud) and § 1341 (mail fraud), the government must prove that the defendant obtained or sought to obtain "specific, identifiable property" belonging to another person or entity. This is not a minor procedural tweak; it is a seismic shift in the landscape of federal white-collar criminal law. Prior to this ruling, many federal prosecutors operated under the assumption that "property" included intangible interests like the right to control business decisions, confidential information, or even unallocated corporate funds. The Court has now expressly rejected those expansive interpretations, holding that "property" means tangible or intangible assets that are "traditionally recognized as property" under state or federal law.

The immediate implication for anyone facing federal fraud charges is that the indictment itself may now be legally insufficient on its face. Under Federal Rule of Criminal Procedure 12(b)(3)(B), you can move to dismiss the indictment for failure to state an offense if the government cannot allege a specific property interest that was actually taken or deprived. I have seen dozens of indictments that charge fraud based on alleged schemes to deprive a victim of "the right to honest services" or "the right to control its economic affairs," without ever identifying a single dollar, asset, or piece of property that changed hands. Those indictments are now dead on arrival in any federal district court that follows the Supreme Court's reasoning. You must act today because Rule 12 requires that such objections be raised before trial, or they are forfeited.

Your defense counsel should immediately file a motion to dismiss under Rule 12(b)(3)(B), arguing that the indictment fails to allege a "property" interest as defined by the Court's new standard. I recommend attaching a memorandum of law that cites the specific language from the ruling, contrasting it with the vague allegations in your indictment. If the government responds by claiming that "money" or "funds" were involved, you push back and demand that they identify the exact funds, the exact victim, and the exact property right that was violated. In many federal fraud cases, especially those involving government contracts, grants, or regulatory schemes, the "property" at issue is actually a regulatory benefit or a license, which the Court has now explicitly excluded from the definition of property under the fraud statutes.

Do not let the government bluff you into thinking this is a minor issue. In my experience, prosecutors will resist this challenge fiercely because they know that many of their cases cannot survive under the new standard. They will argue that the indictment is sufficient on its face, but the Supreme Court's ruling gives you a powerful tool to force them to put up or shut up. If the indictment is dismissed, the government must either re-indict with specific property allegations or drop the charges entirely. Even if the court denies the motion, you have preserved the issue for appeal, and you have forced the government to show its hand early. This single step can turn a potential conviction into a dismissal or a favorable plea deal.

2. The "Honest Services" Doctrine Just Got Much Narrower—Don't Let the Government Overcharge You

The second critical step involves a direct attack on any "honest services" fraud charges brought under 18 U.S.C. § 1346. The Supreme Court's ruling has now clarified that the "intangible right of honest services" is not a catch-all for every ethical lapse or conflict of interest by a public official or private fiduciary. The Court held that § 1346 only criminalizes schemes involving bribes or kickbacks—nothing more. This means that if the government alleges that you failed to disclose a conflict of interest, that you made a misrepresentation to a board of directors, or that you engaged in self-dealing without a quid pro quo, those allegations do not constitute honest services fraud as a matter of law. I have seen federal prosecutors use honest services charges as a hammer to force plea deals in cases where the real conduct was a civil breach of fiduciary duty, not a crime.

If your indictment includes any count under 18 U.S.C. § 1346, you need to file a motion for a bill of particulars under Federal Rule of Criminal Procedure 7(f) demanding that the government identify the specific bribe or kickback it alleges. The government cannot simply say you "deprived your employer of honest services" and leave it at that. Under the Court's new standard, they must allege a specific quid pro quo—a thing of value given or promised in exchange for an official act or a fiduciary decision. If the government cannot point to a specific payment, gift, or benefit that was given with the intent to influence your conduct, the honest services count must be dismissed. I have personally handled cases where the government alleged that a CEO's failure to disclose a personal relationship with a vendor constituted honest services fraud, and those cases are now textbook examples of what the Court has rejected.

You should also consider filing a motion to sever any honest services counts from other fraud counts under Federal Rule of Criminal Procedure 14. The reason is simple: the honest services counts are likely weaker under the new standard, and the government will try to use the taint of those allegations to prejudice the jury on the remaining counts. By severing them, you force the government to try each theory on its own merits, and you prevent the jury from hearing evidence of "ethical lapses" that are not criminal. In my experience, juries are far less likely to convict on wire or mail fraud counts when the honest services counts are stripped away, because the government loses the emotional appeal of "betrayal" and must focus on actual property deprivation.

Do not wait for the government to voluntarily narrow its theory. File a motion to dismiss the honest services counts under Rule 12(b)(3)(B) on the grounds that the indictment fails to allege a bribe or kickback as required by the Court's ruling. If the court denies that motion, you then move for a jury instruction that defines honest services fraud strictly as requiring a bribe or kickback, and you object to any instruction that uses broader language like "deprivation of honest services" without that limitation. Preserving this objection is critical for appeal, because if the jury is given an overly broad instruction and convicts, you have a strong argument for reversal. The government knows this, and they may be willing to drop the honest services counts entirely rather than risk a reversal on appeal.

3. File a Motion in Limine to Exclude Civil Regulatory Evidence—The Court Drew a Bright Line

The third step you must take today is to file a motion in limine to exclude any evidence of civil regulatory violations, internal corporate policy breaches, or ethical rule infractions. The Supreme Court's ruling made clear that not every wrongful act constitutes fraud, and specifically that violations of civil statutes, regulations, or internal policies do not, standing alone, prove that a defendant intended to deprive someone of property. In my years as a prosecutor, I saw the government routinely introduce evidence that a defendant violated SEC rules, FDA regulations, or internal compliance policies, and then argue to the jury that this "proves" fraudulent intent. The Court has now slammed the door on that tactic, holding that the government must prove the defendant specifically intended to obtain property through deception, not merely that the defendant violated some rule or regulation.

Your motion in limine should cite the Court's language distinguishing between "regulatory misconduct" and "criminal fraud." You should argue that any evidence of civil or regulatory violations is irrelevant under Federal Rule of Evidence 401 because it does not make it more or less probable that the defendant intended to deprive a victim of property. Even if the evidence is marginally relevant, you must argue under Rule 403 that its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. The jury will naturally assume that if the defendant violated an SEC rule, he must be guilty of fraud, but the Court's ruling explicitly rejects that inference. You need to educate the judge on this distinction through a well-crafted memorandum of law.

Be specific in your motion. Identify each piece of evidence the government plans to introduce that relates to civil or regulatory matters, and explain why it fails under the new standard. For example, if the government wants to introduce evidence that you failed to file a required form with the Federal Communications Commission or that you violated a corporate travel policy, you argue that those are regulatory or contractual breaches, not evidence of intent to defraud. The Court's ruling essentially creates a firewall between civil wrongs and criminal fraud, and your job is to enforce that firewall before trial. If the judge allows the evidence over your objection, you have preserved a powerful issue for appeal, because the appellate courts will be watching how district courts apply this new standard.

Finally, use this motion to force the government to produce its theory of the case in writing. Under Federal Rule of Criminal Procedure 16, you can demand that the government disclose the evidence it intends to use to prove each element of the offense. If the government cannot point to evidence that the defendant obtained specific property through deception—as opposed to evidence of regulatory violations—then the case should not go to the jury. I have seen judges grant judgments of acquittal under Rule 29 at the close of the government's case when the only evidence was regulatory non-compliance. The motion in limine is your chance to frame the legal issues before trial and to put the government on notice that you will hold them to the Supreme Court's new standard. Do not let them try the case on the old, discredited theories.

If you are facing federal fraud charges, the clock is ticking. The Supreme Court's ruling has created a narrow window to challenge the very foundations of the government's case, but those challenges must be raised before trial or they are lost forever. In my 25 years as a federal prosecutor and now as a defense attorney, I have seen how quickly the government moves to lock in a theory of the case, and how reluctant judges are to revisit issues after trial begins. Do not let your attorney tell you to "wait and see" what the government presents at trial. The time to strike is now, with motions to dismiss, bills of particulars, and motions in limine that force the government to prove every element of its case under the new, more demanding standard. Contact our firm today for a confidential case evaluation, and let us put our decades of federal criminal experience to work for you before the government's case becomes a done deal.