United States v. Hany Al Hedaithy, United States of America v. Riyadh Al-Aiban

OPINION OF THE COURT

Defendant Riyadh Al-Aiban appeals his conviction, following an unconditional guilty plea, of conspiracy to commit mail fraud in violation 18 U.S.C. §§ 371 and 1341. Defendant Hany A1 Hedaithy appeals his conviction, following a bench trial on stipulated facts, for conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341, and mail fraud in violation of 18 U.S.C. §§ 1341 and 2. Al-Aiban and A1 Hedaithy (collectively, “Defendants”) are two of approximately sixty foreign nationals of Arab and/or Middle Eastern descent who were charged in the United States District Court for the District of New Jersey for allegedly participating in a scheme by which imposters were paid to sit for the Test of English as a Foreign Language (“TOEFL”), a standardized test administered by the Educational Testing Service (“ETS”). The purpose of the scheme was allegedly to create the false appearance that Defendants, among others, had taken and achieved an acceptable score on the TOEFL exam so that they could remain eligible to live in the United States under a student visa.

*583 Both Defendants challenge the sufficiency of their respective superseding. indictments, arguing that the conduct alleged therein does not fall within the proscription of the mail fraud statute. Additionally, A1 Hedaithy argues that the evidence presented at his bench trial was not sufficient to support his conviction, and he also challenges the District Court’s denial of his motion for discovery with respect to a claim that he was selectively prosecuted by the Government on account of his race or ethnicity. As a threshold matter, we must also decide whether Al-Aiban’s guilty plea resulted in a waiver of his right to challenge the sufficiency of. his superseding indictment. For the reasons that follow, we will affirm the convictions of each Defendant.

I.

“For purposes of determining the sufficiency of the superseding [indictments], we assume the truth of the following facts alleged in the superseding [indictments].” United States v. Panarella, 277 F.3d 678, 681 (3d Cir.2002). ETS is in the business of designing and administering certain standardized tests. One of those tests, TOEFL, is commonly used by educational institutions in the United States when considering a student for admission to its academic program. Certain schools require foreign students, as a condition of admission, to achieve a minimum score on the TOEFL exam in order to demonstrate proficiency in the English language. Full-time enrollment at a federally approved school, college, or university is, in turn, a requirement for foreign nationals to obtain a student visa and thus reside legally in the United States.

According to the Government, ETS possesses, arid attempts to maintain, goodwill that it has accumulated based upon the integrity of its TOEFL product. ETS has also endeavored to keep its TOEFL exam exclusive, secure, and confidential. It owns registered trademarks in the terms “Educational Testing Service,” “ETS,”. and “TOEFL.” It uses these trademarks on its TOEFL examinations and the score reports that it generates for each applicant who takes TOEFL. ETS also owns copyrights in the TOEFL examination itself and in the questions used on each exam. Furthermore, the company restricts access to, and use of,, its copyrighted TOEFL exam and questions, its trademarked score reports, and its test administration and scoring services.

When an applicant applies to take the TOEFL exam and pays the required fee, he is provided with an appointiment number. The applicant must then appear at á designated test center, provide proof of identity, provide the appointment number, and sign a confidentiality statement. Pursuant to the confidentiality statement, the applicant promises to preserve the confidentiality of the examination. By signing the statement, the applicant also certifies that he is the same person whose name and address was used in completing the application. The applicant must then have his photograph taken in order to ensure that someone else did not take the exam for the applicant. The photograph subsequently appears on the applicant’s score report. Applicants who do not comply with the conditions set by ETS are not permitted to sit for the exam.

Once the TOEFL exam is completed, the exam results are wired from the test center to a company in Baltimore, Maryland, which in turn transmits the results by wire to ETS for processing. ETS then mails each score report to the location designated by the applicant.

In 1999, the Government became aware of a scheme in which Defendants, both Saudi Arabian nationals, and numerous other foreign nationals of Arab and/or Middle Eastern descent, paid an imposter to take and pass the TOEFL exam for *584 them. The purpose of the scheme was to create the false appearance that Defendants themselves had taken and achieved an acceptable score on the TOEFL exam. In furtherance of this scheme, each Defendant applied to take the exam, and then paid money to an imposter to appear at the designated test center and falsely identify himself as the respective Defendant. The imposter then signed the confidentiality statement, had his photograph taken, sat for the TOEFL exam using the respective Defendant’s name, and directed that his exam results be mailed to a California address under the control of one Mahmoud Firas. ETS then processed the exam, and the results were mailed to the pre-desig-nated location in California. There, Firas or one of his associates substituted each Defendant’s photograph in place of the imposter’s photograph. This doctored score report was then sent to legitimate educational institutions in a phony envelope bearing ETS’s trademark.

On May 9, 2002, a federal grand jury returned a one-count indictment charging Al-Aiban with conspiring to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341. That same day, A1 Hedaithy was charged in a two-count indictment with conspiring to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341, and mail fraud in violation of 18 U.S.C. §§ 1341 and 2. Each indictment described the subject of the Defendant’s alleged fraud as ETS’s “property interest in maintaining the integrity of the testing process.” Subsequently, a federal court dismissed a similarly-worded indictment, holding that the integrity of the testing process was not a property interest covered by the mail fraud statute. See United States v. Alkaabi, 223 F.Supp.2d 583, 589-90 (D.N.J.2002).

The Government thereafter filed superseding indictments against Al-Aiban and A1 Hedaithy, in which it attempted to describe ETS’s property interest in greater detail. Al-Aiban was again charged with one-count of conspiring to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341, and A1 Hedaithy was charged with two counts — conspiring to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341, and mail fraud in violation of 18 U.S.C. §§ 1341 and 2. Both superseding indictments were identical in their description of ETS’s property interest:

ETS had property interests in its TOEFL product, including (i) materials bearing its trademarks, such as the TOEFL exam and score report, (ii) its copyrighted materials, such as the TOEFL exam and its questions, (iii) the ETS-specified test administration and scoring services for the TOEFL exam, and (iv) the value of ETS’s goodwill, which is an asset of ETS and is based in part on maintaining the integrity of the testing process.

Each superseding indictment further alleged that:

As part of this conspiracy, the Conspirators defrauded ETS of the property described [above]. They did so by obtaining access to and use of ETS’s trademarked materials, copyrighted materials, and services, by obtaining ETS’s official score report, and by obtaining the benefit of, and undermining, ETS’s goodwill and the value of its trademark and copyright.

Defendants’ individual cases then proceeded along significantly different paths. Al-Aiban entered into a plea agreement with the Government, pursuant to which he agreed to enter a guilty plea and waive his right to appeal the conviction. 1 After *585 accepting Al-Aiban’s guilty plea, the District Court determined that the final adjusted offense-level was four, and sentenced him to pay a $2,500 fine. This conviction rendered him ineligible to remain in the United States, see 8 U.S.C. § 1227(a)(2)(A)(i), and ineligible to return to the United States for at least five years. 8 U.S.C. § 1182. Al-Aiban voluntarily departed the United States following his conviction. He has filed a timely notice of appeal.

A1 Hedaithy, on the other hand, challenged both the superseding indictment and the conduct of the prosecution. He filed a motion to dismiss his' superseding indictment pursuant to Fed. R.Crim. P 12(b)(2), claiming that it failed to allege conduct that violated the mail fraud statute. A1 Hedaithy’s motion also claimed that the Government’s attempted expansion of the scope of the federal mail fraud statute in this case constituted a violation of his right to due process. The District Court denied the motion. The Court reasoned that the requirements of the mail fraud statute were satisfied because A1 Hedaithy obtained from ETS a certificate that he had passed the TOEFL and ETS was thereby deprived of some value of its goodwill.

Thereafter, A1 Hedaithy filed a motion requesting discovery in order to support a claim that he, and other defendants in related cases, were being selectively prosecuted as a result of their race or ethnicity. In support of this motion, he provided the District Court with several news articles indicating that thousands of people cheat on the TOEFL exam each year. He further submitted.materials suggesting that prior to his case, the Government had never sought to prosecute exam takers for alleged cheating. Moreover, Al Hedaithy pointed out that all of the approximately sixty individuals charged for participating in the alleged scheme were persons from Arab and/or Middle Eastern countries. Finally,. he presented evidence that the Government’s expressed intent in these cases was to prosecute the participants as part of the war on terrorism.

The District Court held a hearing on Al Hedaithy’s discovery motion, at which it assumed that discovery would show that Al Hedaithy was being prosecuted specifically because he was from an Arab and/or Middle Eastern country. 2 The Court, however, held that such a motivation would not be unconstitutional under the equal protection component of the Fifth Amendment.

In conducting an equal protection analysis, the District Court first addressed the appropriate level of scrutiny that should be used. The Court noted that, because there has fyeen no great history of discrimination in the United States against the Middle Eastern - population, the level of scrutiny should be rational basis, “but at most would fall into the intermediate level of scrutiny.” The Court therefore applied *586 rational basis review, and concluded that a decision to target Middle Eastern and Arab people for prosecution survived such scrutiny. In reaching this conclusion, the District Court reasoned that:

I don’t think I can ignore the reality of what happened on 9/11, or who perpetrated on 9/11, and the pockets of deep and abiding hatred of the United States.... I think the Government’s in a sense first duty in a way is to protect its own citizens from harm. And I can’t say that this is an unconstitutional way of doing it.

Accordingly, the District Court denied Al Hedaithy’s motion for discovery. At the conclusion of the hearing, Al Hedaithy made an oral motion to dismiss the superseding indictment based on selective prosecution, and that motion was also denied.

Thereafter, Al Hedaithy’s case was tried before the District Court, as the finder of fact, based upon stipulated facts. After the close of evidence, Al Hedaithy was convicted of mail fraud and conspiracy to commit mail fraud under the superseding indictment, and was sentenced to one year probation and a $750 fine. 3 Al Hedaithy has filed a timely notice of appeal. 4

II.

Al-Aiban contends that our decision in Panarella, 277 F.3d at 685, requires that he be afforded an opportunity, pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, 5 to challenge the sufficiency of the superseding indictment despite his unconditional guilty plea. The Government concedes that Panarella directly supports Al-Aiban’s right to appeal, but argues that our decision in that case was overruled by the Supreme Court in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). According to the Government, Panarella is therefore no longer controlling and Al-Aiban’s guilty plea served as a waiver of his right to appeal. We reject the Government’s interpretation of Cotton and hold that Panarella obligates us to reach the merits of Al-Aiban’s appeal.

In Panarella, we expressly held that “Rule 12(b)(2) 6 and our cases applying this Rule permit a defendant who enters an unconditional guilty plea to argue on appeal that the specific facts alleged in the charging document do not amount to a criminal offense.” 277 F.3d at 680. As in our case, the defendant in Panarella agreed to enter an unconditional plea of *587 guilty. Despite the plea, the defendant subsequently appealed his conviction challenging the sufficiency of the superseding information. In arguing that he was entitled to raise the sufficiency of the information for the first time on appeal, the defendant presented two arguments. First, he claimed that the issue was a jurisdictional matter that could be raised at any time. Second, he argued that the plain text of Rule 12(b)(2), together with our previous interpretation of that rule, required the Panarella Court to reach the merits of his appeal notwithstanding the unconditional guilty plea. We agreed with the defendant’s second argument and therefore declined to address his jurisdictional argument.

In addressing Rule 12(b)(2), we noted that we had already held squarely that the rule “applies equally to both objections raised before a District Court and objections raised for the first time before a Court of Appeals,” id. (citing Gov. of the Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3d Cir.1987)), and that it applies “even where a defendant has entered an unconditional guilty plea.” Id. at 683 (citing United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir.2000); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.1999)). We also declined the Government’s invitation to apply Rule 12(b)(2) narrowly to cover only those cases in which the charging instrument completely neglected to mention an element of the offense. Instead, we felt compelled by our previous decisions to hold that

for purposes of Rule 12(b)(2), a charging document fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation. Therefore, notwithstanding [the defendant’s] unconditional guilty plea, Rule 12(b)(2) permits [him] to argue for the first time on appeal that the specific facts alleged in the superseding information do not amount to honest services wire fraud.

Id. 7

In Cotton, a superseding indictment charged defendants with a conspiracy to distribute, and to possess with intent to distribute, a “detectable amount” of cocaine and cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1). 535 U.S. at 627-28, 122 S.Ct. 1781. The indictment did not, however, allege any drug quantities that would result in enhanced penalties under § 841(b). At trial, the jury was instructed, in accordance with the superseding indictment, that the amount of narcotics involved was not important and the defendants could be convicted as long as it found that a defendant conspired to distribute, or possessed with intent to distribute, the narcotics listed. Based on this instruction, the defendants were convicted. At sentencing, the District Court did not sentence the defendants under § 841(b)(1)(C) (which provided for imprisonment of not more than 20 years for drug offenses involving a “detectable amount” of cocaine or cocaine base), but instead made a finding that the defendants’ conspiracy involved more than 50 grams of cocaine base, which implicated the enhanced penalties of § 841(b)(1)(A). Id. at 628, 122 S.Ct. 1781. The District Court accordingly sen- • tenced the defendants under the enhanced penalties, and the defendants did not object to the fact that their sentences were based on drug quantities not alleged in the indictment.

On appeal to the Fourth Circuit Court of Appeals, the defendants argued that their sentences were invalid under Apprendi v. *588 New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 8 Because the Ap-prendi argument had not been raised in the District Court, the Fourth Circuit reviewed this challenge for plain error, but nonetheless vacated the defendants’ sentences. It reasoned that “ ‘because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional, ... a court is without jurisdiction to ... impose a sentence for an offense not charged in the indictment.’ ” Id. at 629, 122 S.Ct. 1781 (quoting 261 F.3d at 404-05). The Supreme Court rejected this reasoning and reversed the Fourth Circuit’s decision.

According to the Supreme Court, the omission of drug quantity from the indictment was not a “jurisdictional” defect. The Court acknowledged that “defects in subject-matter jurisdiction require correction regardless of whether the error was raised in the district court,” but nonetheless concluded that “defects in an indictment do not deprive a court of its power to adjudicate a case.” Id. at 630, 122 S.Ct. 1781. Noting that it was “[fjreed from the view that indictment omissions deprive a court of jurisdiction,” id. at 631, 122 S.Ct. 1781, the Court proceeded to apply a plain error analysis under Fed.R.Crim.P. 52(b) and United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although the Court concluded that the District Court’s error in imposing an enhanced sentence was plain, it declined to address whether the defendants’ substantial rights were affected because “the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at 632-33, 113 S.Ct. 1770. This was because, according to the Court, the evidence presented to the jury that the conspiracy involved more than 50 grams of cocaine base was overwhelming and essentially uncontroverted.

The Government interprets Cotton as holding that a defendant who fails to challenge the sufficiency of his indictment in the District Court cannot argue for the first time on appeal that the indictment fails to state an offense, unless plain error review is satisfied. Such an interpretation sweeps too broadly. Cotton did not hold that a defendant can never argue for the first time on appeal that his indictment failed to state an offense. Rather, the Supreme Court’s express holding was that “defects in an indictment do not deprive a court of its power to adjudicate a case.” 535 U.S. at 630, 122 S.Ct. 1781. In other words, the Court held that indictment defects are not “jurisdictional.” Id. at 631, 122 S.Ct, 1781. This holding, does not conflict with Panarella.

As noted above, the defendant in Panar-ella pursued a jurisdictional argument much like the one rejected in Cotton. We expressly declined to address that argument, however, noting that the authority relied on by the defendant as was “murky.” 9 We instead based our holding *589 on the language of Rule 12(b)(2), which we treated as independent of any jurisdictional ground. See id. at 631, 122 S.Ct. 1781 (“Because we hold that Rule 12(b)(2) requires us to entertain this appeal notwithstanding Panarella’s unconditional guilty plea, we need not reach Panarella’s alternative ‘jurisdictional’ argument for why this appeal survives his guilty plea.”). Accordingly, the basis of our holding in Pa-narella was neither addressed nor rejected in Cotton.

The Government nonetheless insists that the defendants in Cotton raised an argument based on Rule 12(b)(2) and that the Supreme Court rejected it. In support of this contention, the Government suggests that the defendants argued in their briefing to the Supreme Court that Rule 12(b)(2) allowed them to bring their challenge to the indictment at any time, but the Court implicitly rejected the defendants’ reliance on Rule 12(b)(2) by instead applying the plain error analysis of Rule 52(b). The Government’s reasoning is in error.

Clearly, Cotton made no mention of Rule 12(b)(2), even though the rule was cited in the defendants’ briefing. This was not surprising, however, given the manner in which the defendants in Cotton relied upon the Rule. Contrary to the Government’s suggestion, the defendants never raised the argument that we accepted in Panarel-la. Rather, Rule 12(b)(2) was raised in the Cotton briefing merely as support for the uncontroversial proposition that a jurisdictional defect is one that may be raised at any time. See Supreme Court Brief for Respondents at 10, 20, No. 01-687, 2002 WL 463382 (2002). Given that the defendants in Cotton never attempted to rely upon Rule 12(b)(2). -as an independent ground for challenging a defective indictment, we do not construe Cotton as having rejected our holding in Pcmarella that such a ground exists.

Accordingly, Pdnarella dictates that Al-Aiban must be permitted, in accordance with Rule 12(b)(3)(B), to challenge for the first time on appeal the sufficiency of his superseding indictment. It is to that issue we now turn.

III.

“ ‘In order to be valid, an indictment must allege that the defendant performed acts which, if proven, constituted a violation of the law that he or she is charged with violating.’ ” United States v. Zauber, 857 F.2d 137, 144 (3d Cir.1988) (quoting United States v. Gimbel, 830 F.2d 621, 624 (7th Cir.1987)). Defendants’ primary argument on appeal is that the facts alleged in the superseding indictments, as a matter of law, do not constitute a conspiracy to violate, or a violation of, the federal mail fraud statute, 18 U.S.C. § 1341. The question presented is whether these superseding indictments adequately alleged that Defendants engaged in a scheme to -defraud ETS of a traditionally recognized property interest. We will first review the applicable law, and then address the Government’s argument that the superseding indictments sufficiently allege mail fraud violations under well-established theories of mail fraud liability. We will next address several arguments advanced by Defendants for the proposition that the superseding indictments. do not implicate the mail fraud statute. Finally, we conclude that the superseding indict *590 ments sufficiently alleged mail fraud violations. 10

A.

The federal mail fraud statute, 18 U.S.C. § 1341 provides, in relevant part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting so to do, [uses the mails or causes them to be used], shall be fined under this title or imprisoned not more than 20 years, or both.

“To prove mail or wire fraud, the evidence must establish beyond a reasonable doubt (1) the defendant’s knowing and willful participation in a scheme or artifice to defraud, (2) with the specific intent to defraud, and (3) the use of the mails or interstate wire communications in furtherance of the scheme.” United States v. Antico, 275 F.3d 245, 261 (3d Cir.2001) (citing United States v. Clapps, 732 F.2d 1148, 1152 (3d Cir.1984)). A sufficient charging document must therefore allege the foregoing three elements. 11 Additionally, the object of the alleged scheme or artifice to defraud must be a traditionally recognized property right. United States v. Henry, 29 F.3d 112, 115 (3d Cir.1994) (“[T]o determine whether a particular interest is property for purposes of the fraud statutes, we look to whether the law traditionally has recognized and enforced it as a property right.”). This rule is embodied in a trilogy of Supreme Court cases that, each party agrees, governs the outcome of this appeal: McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), and, most recently, Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000). We agree that these three decisions must frame our analysis, and we review each in turn.

1.

In McNally, the defendants were charged with, and convicted of, violating § 1341 by devising a scheme to defraud the Commonwealth of Kentucky’s citizens and government of their “intangible right” to have the Commonwealth’s affairs conducted honestly. 483 U.S. at 352, 107 S.Ct. 2875. The Supreme Court was asked to. determine whether the deprivation of “honest services” fell within the scope of the mail fraud statute. In addressing this issue, the Court was required to review the legislative history of the statute. The Court noted that the original statute, enacted in 1872, referred solely to “any scheme or artifice to defraud.” Id. at 356, 107 S.Ct. 2875. The sparse legislative history of that enactment “indicate[d] that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.” Id. The Court also noted that Congress subsequently amended the mail fraud statute in 1909, “add[ing] the words ‘or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises’ after the original phrase ‘any scheme or artifice to defraud.’ ” Id. at 357,107 S.Ct. 2875.

Because the two phrases identifying the proscribed schemes appear in the disjunctive [ie., “any scheme ... to de *591 fraud, or for obtaining money or property”], it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property.

Id at 358, 107 S.Ct. 2875. In fact, according to the Court, that is exactly the approach taken by the several courts that interpreted “schemes to defraud” as including those schemes designed to deprive victims of things other than money or property, such as “honest services.” Id The Supreme Court, however, rejected such an approach.

The Court recognized that it had. long ago held that “the words 'to defraud’ commonly refer ‘to wrongdoing one in his property rights by dishonest methods or schemes,’ and usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Id (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924)). Congress’ 1909 amendment of the statute, the Court held, did not alter this understanding of the words “to defraud.” Rather, “adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money 'or property.” Id at 359, 107 S.Ct. 2875. Accordingly, the Supreme. Court decided that § 1341 must be read “as limited in scope to the protection of, property rights.” Id at 360,. 107 S.Ct. 2875. 12 As such, the Court held that a scheme to deprive the Commonwealth of Kentucky . of “honest services” was ■ not within the scope of § 1341 and therefore reversed the defendants’ convictions. Id at 361, 107 S.Ct. 2875. 13

2.

The Supreme Court next addressed the mail fraud statute in Carpenter, in which the defendant was alleged to have violated that statute by defrauding the Wall Street Journal (the “Journal”) of “confidential business information.” 484 U.S. at 24, 108 S.Ct. 316. One of the defendants, a reporter for the newspaper, wrote a regular column discussing selected stocks and giving positive and negative information about those stocks. The Journal’s policy was that before the publication of each column, its contents were the Journal’s confidential information. Id. at 23, 108 S.Ct. 316. Despite that policy, the defendant entered into a scheme by which he gave employees of a brokerage firm advance information as to the timing and contents of the column. Those brokers *592 then traded on the prepublication information.

After the scheme was revealed, the reporter and the brokers were charged with violations of the securities laws and the mail and wire fraud statutes. The issue addressed by the Supreme Court was whether the contents of the Journal column, which were fraudulently misappropriated by the reporter, constituted “money or property” under the mail and wire fraud statutes in light of McNally. 14 , In affirming the defendant’s conviction, the Court noted that this was not a case like McNally. According to the Court, the Journal, as the defendant’s employer,

was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute, which “had its origin in the desire to protect individual property rights.”

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