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Second Circuit Panels Diverge on Applying Supreme Court’s Narrowing of Fraud Statutes
Two recent U.S. Court of Appeals for the Second Circuit decisions illustrate lower courts’ differing approaches to the U.S. Supreme Court’s running rebuke of overly expansive interpretations of the mail and wire fraud statutes. In United States v. Lopez, 2025 WL 1818945 (2d Cir. July 2, 2025), a Second Circuit panel reversed the district court’s post-trial grant of a judgment of acquittal in the long running FIFA bribery scandal, finding that the district court had over-emphasized “signals” from recent Supreme Court decisions to find that honest services fraud did not apply to foreign commercial bribery.
The panel insisted on a workman-like application of prior precedents, regardless of whether they might hail from a more expansive interpretive era. In contrast, less than four weeks later in United States v. Chastain, 2025 WL 2165839 (2d Cir. July 31, 2025), a case involving prosecutors’ headline-grabbing efforts to police the popular blockchain technology non-fungible tokens (NFTs), a different panel of the Second Circuit applied the Supreme Court’s admonition, going to significant lengths to distinguish prior precedents to hold that confidential business information must have commercial value to qualify as property. The panel vacated a trial conviction and effectively pared back the wire fraud statute, provoking a partial dissent by Judge José A. Cabranes, which criticized the majority’s “novel addition” of a new requirement that “ignored unambiguous and binding Second Circuit and Supreme Court precedents.”
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