Kousisis et al. v. United States
No. 23-909 · Decided May 22, 2025 · affirmed
Does 18 U.S.C. § 1343 require the government to prove that a defendant sought to cause the victim net pecuniary loss? A defendant who induces a victim to enter into a transaction under materially false pretenses may be convicted of federal fraud even if the defendant did not seek to cause the victim economic loss.
Vote & lineup9–0 (unanimous) on the judgment. Barrett delivered the opinion of the Court, joined by Roberts, Thomas, Alito, Kagan, Kavanaugh, Jackson (7). Concurrence(s): Thomas; Gorsuch; Sotomayor.
The question
Does 18 U.S.C. § 1343 require the government to prove that a defendant sought to cause the victim net pecuniary loss? Specifically, is the "fraudulent-inducement theory"—where a defendant uses falsehoods to trick a victim into a transaction—consistent with the statute's requirement to target "money or property"? Finally, does the fact that a victim receives something of equal value in return preclude a conviction for wire fraud?
Petitioner's argument
- A federal fraud conviction cannot stand unless the government proves the defendant sought to cause the victim net pecuniary loss.
- Economic loss is inherent to the common-law understanding of "fraud," and since § 1343 incorporates common law, this requirement must apply.
- The fraudulent-inducement theory collapses the distinction between wire fraud and other statutes prohibiting false statements, such as 18 U.S.C. § 371 and § 1001.
- Endorsing this theory would turn every intentional misrepresentation used to induce a transaction into property fraud, violating fair notice and federalism.
Respondent's argument
- The text of 18 U.S.C. § 1343 does not mention or require economic loss.
- A defendant "obtains" money or property regardless of whether they provide something of value in return.
- Common law did not establish a general rule requiring economic loss in all fraud cases, particularly in actions for rescission or prosecutions for false pretenses.
- The materiality of the falsehood, rather than economic loss, is the principled basis for distinguishing actionable fraud from everyday misstatements.
The decision
- A defendant who induces a victim to enter a transaction under materially false pretenses may be convicted of federal fraud even if they did not seek to cause the victim economic loss.
- The Court held that 18 U.S.C. § 1343 does not mention or require economic loss; "obtaining" money means "to gain or attain possession" per *Webster's Third New International Dictionary*, regardless of whether something is given in return.
- Under the "old soil" principle, common law fraud was expansive and did not always require pecuniary loss; for example, rescission and false pretenses only required that a victim receive property of a different character or condition than promised (*Prosser & Keeton on Law of Torts*; *Stillwell v. Rankin*).
- The Court distinguished the tort of deceit, which requires economic loss because it "sounds in damage," from other forms of fraud (*United States v. Dunn*).
- Materiality—not economic loss—is the principled limit on federal fraud statutes (*Neder v. United States*).
- Precedent in *Carpenter v. United States* and *Shaw v. United States* explicitly rejected the argument that a fraud conviction depends on monetary loss.
- The fraudulent-inducement theory is distinct from the "right-to-control" theory rejected in *Ciminelli v. United States* because it protects traditional money and property rather than mere information.
- The theory does not protect intangible interests unconnected to property (*McNally v. United States*) nor does it permit convictions based on mere interference with regulatory power (*Kelly v. United States*; *Cleveland v. United States*).
Separate opinions
Thomas, concurring
- Argues that while the Court reserved the issue of materiality, the DBE provisions likely fail the "essence of the bargain" test from *Universal Health Services, Inc. v. United States ex rel. Escobar*.
- Suggests that race-based classifications in the DBE program may be unconstitutional under strict scrutiny (*Adarand Constructors, Inc. v. Peña*; *Students for Fair Admissions, Inc. v. President and Fellows of Harvard College*), which would further undermine materiality.
Gorsuch, concurring
- Agrees that "net pecuniary loss" is not required but argues that common law still requires a general "injury," meaning the victim must be deprived of what they bargained for (*State v. Palmer*; *State v. Asher*).
- Contends that the majority's reasoning risks criminalizing "victimless lies" where a defendant provides exactly what was promised but lied to induce the deal.
Sotomayor, concurring
- Agrees no economic loss is required but argues the majority's discussion of fraudulent inducement should be limited to cases where the defendant delivers something materially different from what was promised.
- Asserts that materiality is indisputable here because DBE compliance was a "material breach" and essential for federal funding under *Universal Health Services, Inc. v. United States ex rel. Escobar*.