The Supreme Court Keeps Narrowing Federal Wire Fraud. Here Is What Florida Federal Defendants Should Be Filing Right Now.

The Supreme Court Keeps Narrowing Federal Wire Fraud. Here Is What Florida Federal Defendants Should Be Filing Right Now.

If you are under federal investigation for wire fraud or mail fraud in the Eleventh Circuit, or you already have an indictment in your hands, the doctrinal ground under your case has shifted twice in three years. The Supreme Court spent 2023 telling federal prosecutors that "right-to-control" wire fraud theories are not lawful. In 2025 the Court came back and clarified which fraud theories survive. Most federal defendants, and many defense lawyers, are still treating wire fraud indictments as if nothing changed. That is a mistake.

The point of this post is concrete. Every federal wire fraud or mail fraud indictment in Florida should be re-examined against the current Supreme Court line. If the indictment rests on a rejected theory, the defense has an opening that did not exist a few years ago.

Two Supreme Court decisions in three years have redrawn the wire fraud map. Florida defendants and their lawyers need to know exactly where the new lines are.

What Actually Changed at the Supreme Court

Three decisions in three years have reshaped how federal prosecutors can charge wire and mail fraud cases.

In May 2023, in Ciminelli v. United States, the Court unanimously rejected the Second Circuit's long-running "right-to-control" theory. For decades that circuit had allowed wire fraud convictions where the defendant deprived a victim of "potentially valuable economic information" needed to make a sound business decision. Justice Thomas, writing for the Court, said the federal fraud statutes reach only traditional property interests. Information alone is not property, and treating it that way "vastly expands federal jurisdiction without statutory authorization."

The same day the Court decided Percoco v. United States, narrowing honest services fraud for private actors. The Court did not abolish § 1346 prosecutions, but it confirmed that prosecutors cannot use the statute to police a private citizen's loose duties without something tying the defendant to a fiduciary obligation.

In May 2025, the Court decided Kousisis v. United States. Justice Barrett, again writing for a unanimous Court, held that the wire fraud statute does not require proof that the defendant intended to cause economic loss. A material misstatement that induces the victim into a contract is enough, even if the victim ultimately got what it paid for. Kousisis upheld liability where Ciminelli had struck a different theory down. The line between the two is the line between mere information deprivation and a material misrepresentation that induces a transaction.

What the Government Is Actually Doing in 2026

Federal prosecutors have not stopped charging wire and mail fraud. They have rewritten their indictments.

Where charging documents used to lean on right-to-control language, current DOJ indictments are more careful to allege material misrepresentations that induced a victim to part with money or property. That is the theory Kousisis preserves.

DOJ healthcare fraud, telemedicine fraud, peptide and compounded-drug fraud, PPP and EIDL fraud, and romance fraud cases in the Southern District of Florida and Middle District of Florida are drafted in this Kousisis-compatible voice. Pre-indictment investigations use the same framework.

If you receive a federal target letter, a federal grand jury subpoena, or you learn you are a subject of investigation, the theory of liability has been reshaped by these three decisions whether your attorney is paying attention or not.

The Eleventh Circuit historically required proof of economic loss for wire fraud, which made it less hospitable to right-to-control theories. But Eleventh Circuit indictments still routinely contain charging language that has not been updated to the post-Ciminelli, post-Kousisis world. That is the opening.

Prosecutors rewrote their indictments after Ciminelli. But older language still appears in SDFL charging documents. That is the opening for a motion to dismiss.

Exposure and the Statutes That Matter

A federal wire fraud conviction under 18 U.S.C. § 1343 carries up to 20 years per count, and up to 30 years per count if the scheme affected a financial institution or major-disaster funds. Mail fraud under 18 U.S.C. § 1341 carries the same maximums. Honest services fraud under 18 U.S.C. § 1346 is routinely paired with the wire and mail counts.

Sentencing is driven by U.S.S.G. § 2B1.1 and the loss tables, with enhancements for number of victims, sophistication, role in the offense, and abuse of position of trust. The 2026 amendments to the Guidelines, effective November 1, 2026, change how loss is calculated for many white-collar offenses and create real opportunities for downward variance.

Even where a case theoretically survives a post-Ciminelli challenge, the way the indictment is drafted and the way loss is calculated controls the sentence you actually serve. Both are now soft in ways they were not before.

20 years per count. 30 if a financial institution was affected. The loss table drives guideline calculations long before a jury decides anything.

Critical Mistakes Federal Targets Make Early

The first mistake is talking to federal agents without counsel. The second is producing documents in response to a federal grand jury subpoena without a litigation hold, a privilege review, and a charging-theory analysis. The third is assuming the investigation is not serious because no charges have been filed. The fourth, and most expensive, is waiting for the indictment to retain experienced federal criminal defense counsel.

In the pre-indictment phase, a defense lawyer who understands Ciminelli, Percoco, and Kousisis can sometimes persuade the line prosecutor that the contemplated theory does not survive a motion to dismiss. That is a declination conversation that does not happen if defense counsel is brought in after the grand jury returns the indictment.

Strategic Defense Approach in a Post-Kousisis World

Three concrete moves apply to most federal wire and mail fraud matters today.

First, read the charging document like a hostile cross-examiner. Identify exactly what property interest the government claims was taken. If the indictment alleges deprivation of information, opportunity, or "the ability to make a sound business decision," that is right-to-control language and it is now constitutionally suspect. A motion to dismiss for failure to state an offense is the right vehicle.

Second, identify the material misrepresentation that supposedly induced the victim to part with money or property. Kousisis preserved this theory but kept materiality as a genuine limit. If the alleged misstatement did not actually drive the transaction, the case has a Kousisis vulnerability worth raising before trial.

Third, the cooperation versus litigation decision has to be made with all three Supreme Court decisions on the table. A federal target letter in 2026 is not the same target letter it was in 2022. The leverage to negotiate a declination, deferred prosecution, or non-prosecution agreement has grown for defendants who can credibly threaten a Ciminelli or Kousisis motion.

The window to challenge the charging theory is narrow and closes at indictment. Motion practice that does not happen pre-indictment rarely happens at all.

Why Timing Matters Right Now

Charging decisions are still fluid early in any federal investigation. The window to influence whether you are charged at all, what theory you are charged under, and how loss is pleaded closes quickly once the indictment returns.

Florida federal defendants who learn about the post-Ciminelli line for the first time at arraignment are usually months behind where they should be. Early intervention, careful reading of the charging theory, and disciplined motion practice change the leverage curve.

Common Questions

Does Ciminelli apply to SDFL cases, not just Second Circuit cases?

Yes. Ciminelli is a Supreme Court decision interpreting 18 U.S.C. § 1343, and it controls in every federal district, including the Southern, Middle, and Northern Districts of Florida and the entire Eleventh Circuit. The principle that the wire fraud statute reaches only traditional property interests applies to every federal wire fraud indictment in the country.

Can a motion to dismiss based on Ciminelli get a federal case thrown out before trial?

Sometimes. A motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) for failure to state an offense is the right vehicle when the indictment does not plead a deprivation of traditional property. Whether it is granted depends on the indictment's language, the theory the government has staked out in discovery, and the assigned judge. Even when denied, the motion locks the government into a theory that may be vulnerable on appeal.

Does the Kousisis ruling require that a victim actually suffer a financial loss?

No. Kousisis confirmed that the wire fraud statute does not require proof of intended economic loss. A material misrepresentation that induces the victim to enter a transaction is enough, even if the victim got what they paid for. The key limit Kousisis preserved is materiality — the misstatement must have actually driven the transaction.

Why does SDFL see so many federal wire and mail fraud cases?

The Southern District of Florida is among the most active federal districts in the country for white-collar prosecutions, healthcare fraud, telemedicine fraud, PPP and EIDL fraud, and crypto fraud. DOJ, FBI, HHS-OIG, and SBA-OIG run aggressive investigations out of Miami, Fort Lauderdale, and West Palm Beach. The volume is why the post-Ciminelli line matters more here than almost anywhere else.

Facing a Federal Wire Fraud or Mail Fraud Investigation in Florida?

If you have received a federal target letter, a federal grand jury subpoena, or a knock at the door from FBI, HHS-OIG, or SBA-OIG agents, the post-Ciminelli doctrinal posture changes the conversation. So does the 2025 Kousisis decision and the 2026 Guidelines amendments. AMC Defense Law represents individuals and businesses in federal investigations and prosecutions across Florida and nationwide. Contact the firm at (561) 542-5494 or contact@amcdefenselaw.com for a confidential consultation.

Disclaimer: This article is for general information only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Every case turns on its own facts. If you are under investigation or facing federal charges, speak with a qualified federal criminal defense attorney about your specific situation.

If you or your loved ones have been arrested or are under federal investigation, call Aaron M. Cohen, 24 hours a day to get help.