MORRISON’S FLAWED “FOCUS” TEST AND THE
TRANSNATIONAL APPLICATION OF THE (MISINTERPRETED)
WIRE FRAUD STATUTE
Julie Rose O’Sullivan*
ABSTRACT
Federal prosecutors’ mantra is “when in doubt, charge wire fraud.” Section
1343 can be applied to any scheme to defraud—a capacious term that encompasses
everything from computer scams to bribery and smuggling—in which a wiring (by
phone, text, internet communication, or the like) can be identified. Given the explo-
sion of transborder criminality—especially that conducted by wire—the geo-
graphic scope of the statute is of great practical importance. This Article resolves a
circuit split by applying the Supreme Court’s presumption against extraterritorial-
ity and concluding that nothing in § 1343 rebuts that presumption. It then attempts
to answer the critical question of what constitutes an acceptably “domestic” case
as opposed to a forbidden “extraterritorial” 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 ques-
tions by identifying if there is conduct occurring within U.S. territory that is the
“focus” of the statute. The lower courts have largely identified the “focus” 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 “yes,” but should it have been?
Given that the overwhelming majority of federal criminal statutes do not speak
to their geographic scope and the strength of the Court’s presumption against
extraterritoriality, the applicability of most federal criminal statutes to transbor-
der conduct will turn on what courts determine the statutes’ focus to be. The lit-
erature is filled with critiques of the Court’s presumption, but almost no attention
has been paid to the “focus” test. This Article, then, fills a serious gap in the lit-
erature by scrutinizing the Court’s novel “focus” test and demonstrating not
only that the test ignores the common-law approach and the Court’s own tradi-
tional elements-based analysis but also that it is fatally subjective, unworkable,
and arbitrary in its results. The lower courts’ analysis of the statutory focus is of-
ten cursory and reliant on inapposite caselaw. This Article addresses this
* Agnes Williams, Sesquicentennial Professor of Law, Georgetown University Law Center. I wish to thank
my research assistant, Nick Watts, Thanh Nguyen, Head of Georgetown Law’s Library Research Services, and
the many students who helped Thanh provide me with invaluable research assistance. © 2024, Julie Rose
O’Sullivan.
251
analytical deficiency by identifying a taxonomy of criteria that ought to be
applied to federal statutes to determine their focus and illustrating how these cri-
teria are applied by reference to the wire fraud statute.
Finally, this Article makes the case that the reason the courts have thus far
failed to identify a textually sound and practically sensible “focus” for § 1343
lies not only in the flawed “focus” test but also in the incoherency of the wire
fraud offense resulting from the Supreme Court’s disregard of the statutory text.
This Article critiques the Court’s rewriting of § 1343 to eliminate both the mens
rea mandated by Congress and the statute’s 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 refer-
ence to criminal law theory, that § 1343 is not a crime at all, at least measured
by traditional requirements. To return to the “focus” test, it is the Supreme
Court’s misinterpretation of the statute that requires the lower courts’ nonsensi-
cal conclusion that the “focus” of a criminal prohibition is an unknowing, unin-
tentional act that is innocent on its face and has no necessary connection to the
execution of the culpable scheme.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
I. THE WIRE FRAUD STATUTE DOES NOT APPLY EXTRATERRITORIALLY . . . 263
A. The Presumption Against Extraterritoriality . . . . . . . . . . . . . . 263
B. The Wire Fraud Statute’s Reference to “Foreign Commerce”
Does Not Rebut the Presumption Against Extraterritorial
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
C. The Legislative History Underlying the “Foreign Commerce”
Amendment Does Not Support Extraterritorial Application . . . 268
D. The Court in United States v. Pasquantino Held that the Wire
Fraud at Issue Was Territorial and Did Not Decide on the
Extraterritoriality of the Wire Fraud Statute . . . . . . . . . . . . . . 271
E. United States v. Bowman is Inapplicable to Wire Fraud . . . . . . 273
II. THE COURT’S NOVEL “FOCUS” TEST FOR SEPARATING DOMESTIC FROM
EXTRATERRITORIAL CASES IS FLAWED . . . . . . . . . . . . . . . . . . . . . . . . 277
A. The “Focus” Test Has No Basis in History or Precedent . . . . 278
B. The “Focus” Test Is Not Easily Administrable . . . . . . . . . . . . 282
1. We Do Not Know What Is Meant by Statutory “Focus”. . 283
2. The Locus of the Conduct Relevant to the “Focus” May Be
Difficult to Identify . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
C. The “Focus” Test Yields Arbitrary Results . . . . . . . . . . . . . . . 287
D. Territoriality Has No Normative Meaning in Wire-Fraud Cases . . . 288
III. THE LOWER COURTS’ ANALYSIS OF WIRE FRAUD’S STATUTORY
“FOCUS” IS FLAWED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
A. The Confused State of the Circuits . . . . . . . . . . . . . . . . . . . . . 291
252 AMERICAN CRIMINAL LAW REVIEW [Vol. 61:251
B. Pasquantino and Morrison Do Not Decide the “Focus”
Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
C. The Lower Courts Are Relying on Inapposite Caselaw . . . . . . 298
IV. A TAXONOMY FOR DETERMINING “FOCUS” REVEALS THAT WIRE FRAUD’S
“FOCUS” IS A WIRING DONE FOR THE PURPOSE OF EXECUTING THE SCHEME TO
DEFRAUD (DESPITE THE SUPREME COURT’S MISSTEPS IN INTERPRETING THAT
LANGUAGE). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
A. Statutory Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
1. According to the Court, the Wiring Element Carries No
Mens Rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
2. The Court Has Read the Required Nexus Between the
Fraud and the Wiring Out of the Statute . . . . . . . . . . . . . 309
3. Fraud: Culpability Without an Act . . . . . . . . . . . . . . . . . 311
4. It Is Wire Fraud, Stupid . . . . . . . . . . . . . . . . . . . . . . . . . 312
B. Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
C. Statutory Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
1. Related Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
2. Proximate Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
D. Practical Administrability . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
E. International Comity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
INTRODUCTION
Were one to read the United States Code, one might not be tempted to dog-ear
Sections 1341 (mail fraud)
1
and 1343 (wire fraud).
2
In fact, however, as Judge Jed
Rakoff famously described § 1341:
1. 18 U.S.C. § 1341. The mail fraud statute provides in pertinent 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, places in any post office
or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by
the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such
matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direc-
tion thereon, or at the place at which it is directed to be delivered by the person to whom it is
addressed, any such matter or thing, shall be fined under this title or imprisoned not more than
20 years, or both.
Id.
2. 18 U.S.C. § 1343. The wire fraud statute states, in 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, transmits
or causes to be transmitted by means of wire, radio, or television communication in interstate or for-
eign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such
scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.
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