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Successful Defenses to Federal Mail and Wire Fraud Cases

The 'Right to Control' Theory in Mail and Wire Fraud Prosecutions

New York Law Journal

The "right to control" theory of mail and wire fraud is one of the most challenging doctrines in white-collar criminal law. In this article, we discuss Judge Loretta A. Preska's recent decision in United States v. Davis, in which Judge Preska analyzed the Second Circuit's "right to control" decisions and concluded that a guilty verdict should be set aside. We also discuss practical steps defense counsel should consider when facing a mail or wire fraud prosecution premised on this doctrine.

The 'Right to Control' Theory in Mail and Wire Fraud Prosecutions (PDF | 235.95 KB

This federal mail and wire fraud case, United States v. Davis, the subject of the attached article, demonstrates the need for federal white collar criminal defense lawyers to analyze and question the basis of the prosecution's theory in mail/wire fraud cases. All too often defense attorneys accept what a prosecutor says is a crime and move on to a plea agreement. The two cooperating co-defendants in the Davis agreed their actions were criminal and plead guilty to a non-existant crime despite the fact that they had to fabricate testimony. Davis' lawyers effectively attacked their credibility and also exposed the prosecution's roaming theory of fraud.

Sometimes in federal white collar cases the Government will bootstrap a non criminal regulation or contract term into a criminal fraud charge based on a misrepresentation that has no significant financial impact on the parties. However, the fact that misrepresentations may exist in a business relationship or contract does not in and of itself form the basis of a crime. In the past the concept that the misrepresentation must be material has been accepted as an element of proof. In a "Right to Control" theory of prosecution another defense emerges that white collar criminal defense lawyers must be aware of in order to effectively represent their clients. 

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