Neither Here nor There: Wire Fraud and the False Binary of Territoriality Under Morrison
Abstract
Fraudulent schemes increasingly rely on wire transmissions and the internet as the economy and communications digitize. To combat these schemes, prosecutors have applied the wire fraud statute, 18 U.S.C. § 1343, to defendants located domestically and abroad. Applying the current standard for extraterritoriality under Morrison v. National Australia Bank Ltd., circuit courts disagree as to whether the wire fraud statute applies extraterritorially. But courts consistently apply an easily met standard when determining if the wire fraud statute should apply domestically under Morrison. This reaches many defendants located abroad. This Comment argues that this broad domestic application of the wire fraud statute shields courts from asking whether the statute applies extraterritorially. Further, this Comment argues that courts’ domestic application of the wire fraud statute is sufficiently broad as to begin to resemble extraterritoriality because courts can almost always find sufficient domestic activity to apply the wire fraud statute. This Comment argues that wire transmissions are sufficiently geographically ambiguous that using a singular statutory focus under Morrison to evaluate whether wire fraud applies domestically is inadequate. In response to that inadequacy, this Comment proposes a new solution that incorporates additional statutory information in evaluating the statute’s domestic application. This solution would better protect defendants from arbitrary domestic application of the wire fraud statute and validate the tenets underlying the doctrine of extraterritoriality.