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.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT · Argued December 9, 2024
Parties — Petitioner: KOUSISIS et al. · Respondent: UNITED STATES
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.
Who prevailed — The respondent (United States) prevailed on the issue of whether 18 U.S.C. § 1343 requires a showing of net pecuniary loss.
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*.