Federal prosecutors\u2019 mantra is \u201cwhen in doubt, charge wire fraud.\u201d\u00a0 Section 1343 can be applied to any scheme to defraud\u2014a capacious term that encompasses everything from computer scams to bribery and smuggling\u2014in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality\u2014especially that conducted by wire\u2014the geographic scope of the statute is of great practical importance. This Article resolves a circuit split by applying the Supreme Court\u2019s presumption against extraterritoriality and concluding that nothing in \u00a7 1343 rebuts that presumption. It then attempts to answer the critical question of what constitutes an acceptably \u201cdomestic\u201d case as opposed to a forbidden \u201cextraterritorial\u201d one. For example, consider the FIFA corruption case in which foreign entities allegedly bribed foreign soccer officials to secure foreign broadcasting rights to foreign soccer matches. Will the fact that the bribes were wired from a New York bank account suffice to make this an acceptably domestic prosecution? According to the Supreme Court, one resolves such questions by identifying if there is conduct occurring within U.S. territory that is the \u201cfocus\u201d of the statute. The lower courts have largely identified the \u201cfocus\u201d of the statute to be the wiring element, such that regardless of the location of perpetrators, the victims, or the fraudulent conduct, the fact that a wiring crosses a U.S. border means that federal prosecutors can pursue the case. The answer, then, in the FIFA corruption cases was \u201cyes,\u201d but should it have been?<\/p>\n
Given that the overwhelming majority of federal criminal statutes do not speak to their geographic scope and the strength of the Court\u2019s presumption against extraterritoriality, the applicability of most federal criminal statutes to transborder conduct will turn on what courts determine the statutes\u2019 focus to be. The literature is filled with critiques of the Court\u2019s presumption, but almost no attention has been paid to the \u201cfocus\u201d test. This Article, then, fills a serious gap in the literature by scrutinizing the Court\u2019s novel \u201cfocus\u201d test and demonstrating not only that the test ignores the common-law approach and the Court\u2019s own traditional elements-based analysis but also that it is fatally subjective, unworkable, and arbitrary in its results. The lower courts\u2019 analysis of the statutory focus is often cursory and reliant on inapposite caselaw. This Article addresses this analytical deficiency by identifying a taxonomy of criteria that ought to be applied to federal statutes to determine their focus and illustrating how these criteria are applied by reference to the wire fraud statute.<\/p>\n
Finally, this Article makes the case that the reason the courts have thus far failed to identify a textually sound and practically sensible \u201cfocus\u201d for \u00a7 1343 lies not only in the flawed \u201cfocus\u201d test but also in the incoherency of the wire fraud offense resulting from the Supreme Court\u2019s disregard of the statutory text. This Article critiques the Court\u2019s rewriting of \u00a7 1343 to eliminate both the mens rea mandated by Congress and the statute\u2019s requirement that the wiring have a close nexus to the furthering of the fraud, a change that applies to all wire fraud cases, not just transnational prosecutions. This Article demonstrates, by reference to criminal law theory, that \u00a7 1343 is not a crime at all, at least measured by traditional requirements. To return to the \u201cfocus\u201d test, it is the Supreme Court\u2019s misinterpretation of the statute that requires the lower courts\u2019 nonsensical conclusion that the \u201cfocus\u201d of a criminal prohibition is an unknowing, unintentional act that is innocent on its face and has no necessary connection to the execution of the culpable scheme.<\/p>\n