United States v. Moshe Porat

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 22-1560
______________

UNITED STATES OF AMERICA

v.

MOSHE PORAT,
Appellant
______________

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-21-cr-00170-001)
District Judge: Honorable Gerald J. Pappert
______________

Argued May 18, 2023
______________

Before: KRAUSE, PHIPPS, and CHUNG, Circuit Judges.

(Filed: August 7, 2023)

Mark B. Dubnoff [ARGUED]
Nancy E. Potts
Mary Teresa Soltis
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

Counsel for Appellee

Avery D. Medjuck
Theodore D. Sampsell-Jones
Alexandra A.E. Shapiro [ARGUED]
Shapiro Arato Bach
1140 Avenue of the Americas
17th Floor
New York, NY 10036

Counsel for Appellant

Tai H. Park
1140 Avenue of the Americas
17th Floor
New York, NY 10036

Counsel for Amicus Appellants Professor Stephen F.
Smith and Notre Dame Law School

Michael D. Pepson
Americans for Prosperity Foundation
1310 N Courthouse Road
Suite 700
Arlington, VA 22201

Counsel for Amicus Appellant Americans for
Prosperity Foundation

2
 ______________

OPINION OF THE COURT
______________

CHUNG, Circuit Judge.

Moshe Porat, the former Dean of the Fox School of
Business at Temple University (“Fox”), appeals his
convictions for conspiracy to commit wire fraud, in violation
of 18 U.S.C. § 371, and wire fraud, in violation of 18 U.S.C. §
1343.

On appeal, Porat argues that the government did not
plead or prove by sufficient evidence (1) that he sought to
deprive his victims of money, (2) that he sought to personally
obtain money, or (3) that the party he deceived was the same
party he defrauded of money (i.e., “convergence”). With
regard to the second issue, Porat also argues that the District
Court erred in refusing to provide the jury with the instructions
he sought. Because the evidence was sufficient for a rational
jury to convict him, and because the government need not
prove either that the scheme was intended to personally benefit
Porat or “convergence,” we will affirm.

I. BACKGROUND

A. Factual Background

Porat was convicted for his scheme to raise Fox’s
“rankings” in U.S. News and World Report (“U.S. News”), a
publication that rates colleges and graduate schools, including

3
business schools. 1 The government offered evidence that,
while some have criticized these rankings as poor measures of
a school’s quality, many people rely on them to compare
business schools. These include applicants, students, alumni,
donors, employers, faculty, and the schools themselves.

Porat was Fox’s Dean from 1996 to 2018. During his
time at Fox, he was “almost obsessed with rankings.” Suppl.
App. (“SA”) 399. Sometime in the early 2000s, Porat created
a committee that met regularly to consider the data that Fox
would provide for use by U.S. News in formulating rankings.
It also studied the rankings and strategized ways by which Fox
could improve its rankings. Over time, Porat came to work
most closely on rankings with two Fox employees, Isaac
Gottlieb and Marjorie O’Neill. Porat eventually eliminated the
committee and consolidated responsibility for Fox’s survey
submissions in O’Neill, who reported directly to him. After
that, Porat continued to confer with both Gottlieb and O’Neill
on rankings strategy.

At some point, Porat’s efforts to raise Fox’s rankings
crossed the line from strategy to falsification. Evidence at trial
showed that Fox may have submitted false data to rankings
publications as early as 2010. By 2014, having reverse-

1
On appeal, Porat does not challenge the truth of the
evidence presented at trial, but only whether it was sufficient
to convict him. And in reviewing Porat’s appeal of his
conviction, “we must consider the evidence in the light most
favorable to the government.” United States v. Rowe, 919 F.3d
752, 758 (3d Cir. 2019). Accordingly, we state the facts as
shown at trial.

4
engineered the methodology behind the U.S. News rankings,
Porat, Gottlieb, and O’Neill used falsifications to manipulate
Fox’s rankings—in particular, the rankings for its Online MBA
(“OMBA”) and Part-Time MBA (“PMBA”) programs. To
better Fox’s OMBA ranking, they falsely stated that 100
percent of Fox’s OMBA students had taken the Graduate
Management Admission Test (“GMAT”), when the actual
number was much lower. They also misreported data on offers
of admission, student debt, and average undergraduate grade
point average. To better Fox’s PMBA ranking, they combined
data for Fox’s PMBA program with data for its OMBA and
Executive MBA (“EMBA”) programs to overstate the PMBA
students’ average work experience and the percentage of Fox’s
MBA students who were PMBA students. As with the OMBA
program, they also falsely reported that 100 percent of Fox’s
PMBA students had taken the GMAT.

Partly because of these deceptions, Fox’s OMBA
program rose from its U.S. News rank of Number Nine in 2014
to Number One in 2015—a position that it held for four straight
years. Fox’s PMBA ranking climbed steadily over three years
from Number Fifty-Three in 2014 to Number Seven in 2017.

Porat viewed Fox’s high rankings as a key way to
market Fox to students and to thus generate more tuition
money. 2 One Fox administrator testified that Porat believed

2
Although the Indictment alleged that Porat sought to
defraud “Fox applicants, students, and donors” of money,
Appendix (“A”) 98, 115 (emphasis added), Porat notes that
most of the government’s evidence at trial concerned
applicants and students only. On appeal, Porat’s arguments

5
Fox needed “good rankings and to publicize good rankings for
enrollment.” SA475. In a book manuscript, Porat boasted
about Fox’s OMBA ranking as Number One and wrote that
“enhancing the school’s image” is “the single most important
factor in assuring continuous demand from the students, the
parents, and employees.” Id. at 299. And with Porat’s
knowledge and involvement, Fox aggressively marketed its
false high rankings. Fox advertised its deceptively obtained
rankings on its website, on social media, and on billboards and
signs. Porat also sent or approved emails touting Fox’s false
rankings to students, student recruiters, and donors. Porat also
represented to students that Fox’s high rankings would bring
them continuing—and even increasing—benefits. In a 2017
speech, Porat told graduating Fox students, “I often say that
your diploma is like a share of stock in an enterprise … in
which you remain shareholder long after you have graduated.”
Gov’t Ex. 148. He further said that “many leading
publications”—including “U.S. News”—“rank our programs
among the best in the world and they agree that our stock
indeed has been appreciating in value.” Id. During a 2017
“champagne toast” held to celebrate the rankings, Porat posed
for a photo with students in front of a banner that read “YOUR
STOCK IS SOARING.” SA733–35. Fox printed the banner
and arranged the photo to use it for “PR.” Id. at 734.

mainly concern his scheme to defraud applicants and students
of tuition money. Because Porat’s arguments on appeal focus
on tuition money, and because proof that he defrauded students
and applicants is enough to convict him, the discussion that
follows focuses on this element of the scheme.

6
 The advertising worked. At trial, former students
testified that they chose Fox because of its rankings. One
former student testified that he “decid[ed] to go with Temple
University because of [its] Number 1 ranking.” Id. at 502. He
further explained that he chose Fox because he knew that
“people look at [rankings],” and that “once [he] graduat[ed],”
he wanted to have “been a part of” a program that “was ranked
Number 1.” Id. at 503. After learning that Fox’s rankings were
inflated, he regretted not choosing a school that would have
given him the “same piece of paper” at a much lower cost. Id.
at 507. Another former student testified that he believed
employers hire students from schools with the best “brand” and
that Fox’s highly ranked brand would help him “compete in the
marketplace.” A172. Ultimately, Fox’s Number One ranking
“was the only factor in [his] decision making” in choosing Fox
over another school. SA133. Enrollment numbers corroborate
that Fox’s falsely inflated ranking influenced students’
enrollment decisions. Between the 2014–2015 and 2017–2018
academic years, enrollment in Fox’s OMBA and PMBA
programs spiked from 133 students to 336 students and 88
students to 194 students, respectively. The increased
enrollment was tremendously lucrative. The government
estimated that Fox gained nearly $40 million in tuition from
the additional students who enrolled during this period (2014–
2018).

As the money poured in, Porat’s team discussed how to
keep the rankings high and make even more money. In a
January 2015 email to Porat, Gottlieb emphasized Fox’s need
to maintain its high rankings, cautioning that just as “being
number one can potentially add over 1–200 students a year”
and bring corresponding “financial value” to Fox, so could
“moving down” in the rankings “result in financial losses

7
associated with a reduction of the 100+ students.” SA749.
Porat responded, “Good stuff.” Id. In September 2015,
Gottlieb copied Porat on an email about rankings for another
Fox program, its Global MBA (“GMBA”). Gottlieb noted that
Fox’s “OMBA and PMBA doubled in intake numbers when
we had a striking increase in ranking,” and estimated that
increasing Fox’s GMBA ranking would produce “a profit of
over $700,000 a year.” Id. at 756.

Then, in early 2018, Porat’s scheme was exposed. On
January 9, 2018, an article discussing Fox’s repeated Number
One ranking highlighted Fox’s self-reported 100-percent
GMAT figure. That figure raised an “enormous red flag”
among other Fox administrators who knew that it was false. Id.
at 189. Nonetheless, and despite warnings from administrators
that they should not proceed, Porat pushed ahead with a
celebratory toast, saying “we’re going.” Id. at 336. At the
toast, Porat lauded Fox’s OMBA ranking. The next day, Fox
administrators decided to disclose the false GMAT data to U.S.
News. Yet even then, Porat continued to publicize the
rankings. On January 22, 2018, he sent an email to his “Porat
100,” a VIP list that included Fox donors and potential donors,
with the subject line “#1 Online MBA and #2 Online BBA in
the nation AGAIN!” Id. at 810. Two days later, on January
24, 2018, U.S. News announced that Fox’s “misreported data
resulted in the school’s numerical rank being higher than it
otherwise would have been,” and that “[b]ecause of the
discrepancies,” it would move Fox’s OMBA program to the
“Unranked” category. A528–29. Fox then withdrew its other
programs, including its PMBA program, from consideration in
U.S. News’ rankings for that year.

8
 The exposure was a disaster for Fox’s rankings. When
U.S. News resumed ranking Fox, it placed both Fox’s OMBA
and PMBA programs in forty-first place. And as Fox’s
rankings fell, its enrollment did as well. Fox’s OMBA
enrollment plummeted from its high of 336 students in the
2017–2018 academic year to 144 in 2018–2019, and 106 the
year after. Fox’s PMBA enrollment dropped in each of the
three years after the deception came to light, from its high of
194 students to 145, 117, and 89.

B. Procedural Background

On April 15, 2021, a grand jury charged Porat with one
count of conspiracy to commit wire fraud in violation of 18
U.S.C. § 371, and one count of wire fraud in violation of 18
U.S.C. § 1343.
In the conspiracy count, the Indictment alleged that
Porat conspired with Gottlieb and O’Neill “to devise a scheme
and artifice to defraud and to obtain money and property from
Fox applicants, students, and donors, by means of materially
false and fraudulent pretenses, representations, and promises.”
A98. For the “Manner and Means” of the conspiracy, the
Indictment alleged that Porat “conspired … to deceive readers
of U.S. News by providing false and misleading information to
U.S. News about Fox’s OMBA and PMBA programs in order
to fraudulently inflate Fox’s ranking in the U.S. News
surveys,” with “goals … includ[ing] attracting more students
to apply to Fox, matriculate at Fox, and pay tuition to Fox, and
enticing Fox alumni and other benefactors to donate money to
Fox.” Id. at 98–99. In the wire fraud count, the Indictment
alleged that Porat “devised and intended to devise a scheme to
defraud Fox applicants, students, and donors out of money and

9
property,” and incorporated the “Manner and Means” from the
conspiracy count. Id. at 115.

Porat moved to dismiss the Indictment for failure to
state an offense under Rule 12(b)(3) of the Federal Rules of
Criminal Procedure. The District Court denied Porat’s motion,
and the case went to trial in November 2021. After a two-week
trial, the jury convicted Porat on both counts.

Porat filed a post-trial motion for acquittal under Rule
29 of the Federal Rules of Criminal Procedure or, in the
alternative, for a new trial under Rule 33 of the Federal Rules
of Criminal Procedure. The District Court denied Porat’s
motion. The Court entered judgment on March 14, 2022,
convicting Porat and sentencing him to fourteen months in
prison and $250,200 in fines and assessments.

Porat timely appealed.

II. DISCUSSION

A. The Evidence Was Sufficient to Convict Porat

We conduct plenary review of the sufficiency of the
evidence. Rowe, 919 F.3d at 758. In doing so, we must affirm
Porat’s conviction if, considering the evidence in the light most
favorable to the government, there is “substantial evidence
from which any rational trier of fact could find guilt beyond a
reasonable doubt.” Id. at 758–59. We conclude that there is.
We begin by briefly reciting the requirements of wire
fraud as relevant to Porat’s challenges on appeal. The federal
wire fraud statute criminalizes “any scheme or artifice to
defraud, or for obtaining money or property by means of false
or fraudulent pretenses, representations, or promises.” 18

10
U.S.C. § 1343. The Supreme Court has consistently held that
the federal fraud statutes “protec[t] property rights only.”
Ciminelli v. United States, 143 S. Ct. 1121, 1126 (2023)
(alteration in original) (quoting Cleveland v. United States, 531
U.S. 12, 19 (2000)). 3 Moreover, “property must play more
than some bit part in a scheme: It must be an ‘object of the
fraud.’” Kelly v. United States, 140 S. Ct. 1565, 1573 (2020)
(quoting Pasquantino, 544 U.S. at 355). Thus, “a property
fraud conviction cannot stand when the loss to the victim is
only an incidental byproduct of the scheme.” Id.

Based on the evidence at trial, a rational jury could have
found beyond a reasonable doubt that Porat engaged in the kind
of scheme the wire fraud statute criminalizes: that is, that Porat
trumpeted Fox’s knowingly false, inflated rankings to students
for the purpose of enticing his victims to pay tuition money.
Moreover, a rational trier of fact could have found that the
evidence established that this financial purpose was an object
of Porat’s scheme. This evidence included Porat’s repeated
emphasis on using rankings to increase Fox’s enrollment and
tuition revenues, and expert testimony that rankings are crucial
to many students’ decisions about where to spend their tuition
dollars.

The evidence also reflected that Porat intended the
falsely inflated rankings to be used as an indicator of a Fox

3
Congress has enacted statutes criminalizing both mail
fraud and wire fraud. See 18 U.S.C. §§ 1341, 1343. We
interpret “identical language in the wire and mail fraud statutes
in pari materia.” Pasquantino v. United States, 544 U.S. 349,
355 n.2 (2005).

11
degree’s future value to students. As described above, Porat
“often” said that a Fox degree was like a “stock” that was
“appreciating in value” as Fox’s rankings rose. Gov’t Ex. 148.
Consistent with Porat’s “rising stock” assessment, the evidence
at trial reflected that students viewed rankings as a way to
evaluate the future yield of a Fox degree in terms of
employment and earnings. Likewise, the government’s expert
testified that rankings are “a signal to employers that [the]
program is a good program.” A151.

Further, although success of the scheme is not required
to sustain a wire fraud conviction, see United States v. Frey, 42
F.3d 795, 800 (3d Cir. 1994), evidence showed that Porat’s
scheme was wildly profitable for Fox. This evidence included
the government’s estimate that students drawn in by Porat’s
deception paid Fox a total of nearly $40 million. It included
testimony from Fox alumni that they chose Fox for its
rankings. It also included enrollment data showing that the
increased rankings changed how students valued Fox’s
programs. In the 2014–2015 academic year, a combined total
of only 221 OMBA and PMBA students were willing to pay
Fox’s tuition. Three years later, when Fox’s rankings were at
their zenith, 530 students—nearly two-and-a-half times that
number—considered Fox’s programs worth the price. And
when Fox’s rankings plummeted after the deception was
exposed, Fox suffered a corresponding drop in enrollment as
far fewer students decided that the Fox degree merited the
tuition.

Given this substantial evidence, a rational jury could
have found beyond a reasonable doubt that Porat engaged in a
scheme to defraud victims of their money, and could have
found that this financial object was more than an “incidental

12
byproduct” of the scheme. That is sufficient to convict Porat
of wire fraud.

B. The Evidence Was Sufficient to Prove
Deprivation of Money

Porat argues that he did not deprive his victims of
money, and makes two arguments in support. First, Porat
argues that students were deprived only of rankings, and
“rankings are not property.” Porat Opening Br. 25. But Porat
was not convicted on the theory that he deprived students of
rankings; he was convicted for depriving them of tuition
money. The Indictment charged that Porat used deception to
“attract[] more students to apply to Fox, matriculate at Fox, and
pay tuition to Fox.” A99; see also id. at 115. The District
Court instructed the jury that to convict Porat, it must find that
he engaged in a scheme to defraud Fox “applicants, students,
or donors of money,” id. at 381, and Porat did not object to the
basic contours of this instruction. 4 By convicting Porat, the
jury necessarily found that he sought to defraud his victims of
money. The jury’s finding was reasonable, given evidence that
Porat employed a scheme to “add … students” and thereby,
their tuition, producing “financial value” through materially
false representations of Fox’s rankings. SA749. Thus, despite
Porat’s attempt to redirect focus to the rankings, money was an
object of his scheme.

4
While Porat did ask for an instruction that the jury
must find he personally obtained money (an argument we
address below), he did not object to the basic proposition that
money satisfies the property element of fraud, nor did he ask
for an instruction that a deprivation of a ranking is not a
deprivation of “property.”

13
 Second, Porat argues that even if he did aim to take
money from his victims, he still did not deprive them of money
or property, because they received the “essential benefit of the
bargain,” an education. Porat Opening Br. 29. Porat further
argues that the rankings, as intangible considerations, cannot
legally be an essential part of the bargain because there is no
“independent property interest in the U.S. News rankings.” Id.
Relying on cases from other circuits, Porat contends that there
was no fraud here because the victims received a Fox
education, which was the “full benefit of their bargain” or
“exactly what they paid for.” Id. at 27, 32 (emphasis added)
(first quoting United States v. Binday, 804 F.3d 558, 599 n.46
(2d Cir. 2015), abrogated by Ciminelli, 143 S. Ct. at 1121; and
then quoting United States v. Takhalov, 827 F.3d 1307, 1314
(11th Cir. 2016)). But the cases Porat relies upon do not stand
for the proposition that the value of a bargain cannot include
intangible considerations; rather, they suggest that a victim is
only “deprived” of property when the false representation
affects the very nature or value of the bargain. See, e.g., United
States v. Guertin, 67 F.4th 445, 451 (D.C. Cir. 2023) (fraud
occurs when “defendant lies about the nature of the bargain
itself” (quoting Takhalov, 827 F.3d at 1314)); Binday, 804 F.3d
at 570 (“[W]e have upheld convictions for mail and wire fraud
where the deceit affected the victim’s economic calculus or the
benefits and burdens of the agreement.”). 5

5
Some of these cases, like Binday, upheld fraud
convictions where no tangible property was taken, but the
defendant deprived the victim of the “interest … in controlling
his or her own assets.” 804 F.3d at 570 (quoting United States
v. Carlo, 507 F.3d 799, 802 (2d Cir. 2007)). However, the
Supreme Court has since invalidated that theory, as “the right

14
 Moreover, as set forth more fully above, see supra
Section II.A, the evidence at trial reflected that the nature of
the bargain between Fox and the students included not only the
actual education afforded them, but also the current value of a
highly ranked program, and even the future value of Fox’s
MBA degrees. To be sure, it is commonly understood and fully
expected that a school’s ranking, and the current and future
value of a particular school’s degree, may fluctuate over time
in the normal course, e.g., with changes in a school’s
administration, faculty, and student body, as well as changes in
the overall marketplace. But it is not commonly understood or
expected that a ranking will soar or plummet as a result of
deceit or misrepresentation. While Porat asserts that the
bargain only encompassed an exchange of tuition for
education, the jury was free to come to a different conclusion, 6

to valuable economic information needed to make
discretionary economic decisions is not a traditional property
interest” protected by the fraud statutes. Ciminelli, 143 S. Ct.
at 1128. To the extent these cases are still good law and rely
on other theories of fraud not explicitly endorsed by this
Circuit, we do not opine on those matters nor adopt any
positions here. Rather, we note that the broader fraud
principles set forth in the cited cases do not ultimately support
Porat’s position.
6
As noted above, we do not read the cases relied upon
by Porat to call the jury’s conclusion into question. That is
because the bargain here was simply different than the bargains
at issue in the cases Porat cites. Those cases often involved
situations where the victims set the asking price and did not
involve the additional consideration of the future value of the
bargained-for items. Even if those cases had involved the same

15
especially in light of the fact that Porat neither requested a jury
instruction on this theory, nor argued it to the jury. In addition,
and as set forth above, the evidence indicated that Fox’s falsely
inflated rankings impacted students’ valuation of the bargain,
impacting their assessment of a Fox education’s worth and
their assessment of the future yield of a Fox MBA, and causing
many more students to enroll at Fox. Accordingly, we
conclude that a rational jury could find beyond a reasonable
doubt that the students did not receive the full benefit of their
bargain, and—in the language from the cases Porat cites—that
Porat’s false ranking representations affected their “economic
calculus,” Binday, 804 F.3d at 570, and that he “lie[d] about
the nature of the bargain itself,” Guertin, 67 F.4th at 451.

type of bargain, the false representations were not of the kind
that could materially affect present and future value. See, e.g.,
United States v. Sadler, 750 F.3d 585, 588–90 (6th Cir. 2014)
(creation of fake patients in order to buy pills from distributor
at asking price); United States v. Shellef, 507 F.3d 82, 89–90
(2d Cir. 2007) (buyers falsely represented intent to redistribute
chemicals domestically in bargain to pay distributor asking
price for chemicals); Takhalov, 827 F.3d at 1310–11 (hostesses
posing as customers in sales of alcoholic drinks to bar
customers). Unlike the items bargained for in those cases, an
MBA is a costly, debt-inducing, once-in-a-lifetime “purchase”
expected to have long-term effects on employment and
earnings. Thus, in making a cost-benefit analysis, a student-
buyer would be prudent to assess the degree’s effect on future
earnings. While the reality may be that rankings are a poor
proxy for present and future value, the jury heard evidence that
both Porat and the students recognized the influence of
rankings in these areas.

16
 In sum, because the substantial evidence was sufficient
for a rational jury to find that Porat knowingly used materially
false representations of Fox’s rank to obtain students’ money
in the form of tuition, the evidence satisfies the property
element of wire fraud. Accordingly, we will defer to the jury’s
verdict.

C. The Government Did Not Have to Prove the
Object of Porat’s Scheme Was to Personally
Obtain Money

Porat next argues that even if the government did prove
that he sought to deprive his victims of money, it failed to
prove a necessary corollary: that he sought to personally obtain
money or property from his victims. The statutory text and the
case law do not compel such a reading.

The text of the wire fraud statute does not expressly
provide that the defendant must seek to personally obtain
property. Rather, it broadly criminalizes “any scheme or
artifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises.” 18 U.S.C. § 1343. The wire fraud statute makes no
reference to what the defendant receives. Porat argues that we
should narrowly interpret the statutory term “obtaining” to
mean bringing “into one’s own possession.” Porat Opening Br.
37 (emphasis added) (quoting Honeycutt v. United States, 581
U.S. 443, 450 (2017)). But as the Second Circuit has stated,
“[b]y the plain language of the statute, the identity of the
ultimate beneficiary is not dispositive and the plain meaning of
the word ‘obtain’ is sufficiently capacious to encompass
schemes by defendants to obtain money for the benefit of a

17
favored third party.” United States v. Gatto, 986 F.3d 104, 124
(2d Cir. 2021). We agree.

Case law also lends no support for a requirement that
the defendant seek to personally obtain property. It is true that,
at times, the Supreme Court has referred to the money-or-
property requirement in terms of either “depriving” the victim
of money or property, or “obtaining” money or property.
Compare Kelly, 140 S. Ct. at 1571 (“The wire fraud statute thus
prohibits only deceptive ‘schemes to deprive [the victim of]
money or property.’” (alteration in original) (quoting McNally
v. United States, 483 U.S. 350, 356 (1987)), with id. at 1572
(“fraudulent schemes violate that law only when, again, they
are ‘for obtaining money or property’” (quoting 18 U.S.C. §
1343)). But in varying the language it has used to describe the
money-or-property element, the Court has never suggested that
the defendant must seek to personally obtain property. In
addition, in the Third Circuit, we have suggested that a
defendant need not personally benefit from his fraudulent
scheme to be criminally liable. See, e.g., United States v. Riley,
621 F.3d 312, 332 (3d Cir. 2010) (“To support a fraud
conviction it is ‘not necessary for the Government to
demonstrate that [the defendant] personally benefitted from
[the] scheme.’” (alterations in original) (quoting United States
v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987))); see also
United States v. Al Hedaithy, 392 F.3d 580, at 605 (3d Cir.
2004) (“[T]he mail fraud statute does not require that a scheme
be designed to obtain any property from the victim; rather it is

18
sufficient that the scheme is designed to fraudulently deprive
the victim of property or an interest in property.”). 7

Porat seeks support in the Supreme Court’s statement in
Skilling v. United States, 561 U.S. 358 (2010), that honest-
services fraud lacks the “symmetry” of other kinds of “fraud in
which the victim’s loss of money or property supplied the
defendant’s gain, with one the mirror image of the other.” Id.
at 400. He argues that this passage from Skilling sets out a
“mirror-image” rule for property fraud and means that there is
no fraud unless the defendant seeks to personally obtain what
the victim loses. But Skilling invokes the mirror-image
concept only to highlight the basic structural difference
between honest-services fraud and property fraud. It does not,
however, prescribe a necessary condition for property fraud.

Accordingly, we reject Porat’s contention that wire
fraud requires proof that the defendant sought to personally
obtain money or property. Because we reject this requirement,
we need not address Porat’s argument that the District Court

7
The government argues that United States v. Pabey,
664 F.3d 1084, 1089 (7th Cir. 2011), and United States v.
Delano, 55 F.3d 720, 723 (2d Cir. 1995), show that lying to
benefit a third party can still be federal fraud. But it is not clear
that these cases stand for that proposition, as the defendants in
each case still derived at least an indirect economic benefit
from their deceptions. In any event, our case law indicates that
no direct personal economic benefit is required for a
defendant’s fraud conviction to stand. See Riley, 621 F.3d at
332.

19
erred in failing to provide his requested jury instructions on this
point. 8

D. The Government Did Not Have to Prove
Convergence

Finally, Porat asks us to adopt a “convergence”
requirement for wire fraud—that is, a requirement that the
defendant deceive the same party he defrauds of money. Porat
argues that the government neither pleaded nor proved
convergence here because its theory was that he deceived U.S.
News, but sought to take money from students, applicants, and
donors.

The Ninth Circuit is the only Court of Appeals that has
required convergence. See United States v. Lew, 875 F.2d 219,
221–22 (9th Cir. 1989). 9 Other Courts of Appeal have
considered and rejected it. See, e.g., United States v.
Christopher, 142 F.3d 46, 54 (1st Cir. 1998); United States v.
Greenberg, 835 F.3d 295, 306–07 (2d Cir. 2016); United States
v. McMillan, 600 F.3d 434, 449–50 (5th Cir. 2010); United
States v. Seidling, 737 F.3d 1155, 1161 (7th Cir. 2013); United
States v. Blumeyer, 114 F.3d 758, 767–68 (8th Cir. 1997);
United States v. Kennedy, 64 F.3d 1465, 1476 (10th Cir. 1995).

8
We also need not address the government’s arguments
that Porat did not properly preserve his arguments on this point
in the District Court.
9
The District of Columbia Circuit has also “assume[d]
without deciding” that convergence was required where “the
indictment properly allege[d] convergence.” United States v.
Abou-Khatwa, 40 F.4th 666, 675 (D.C. Cir. 2022).

20
In United States v. Bryant, 655 F.3d 232 (3d Cir. 2011), we
addressed a defendant’s convergence argument, and noted that
“[w]e have yet to decide this issue.” Id. at 249. We also
determined that “we need not make that decision” in Bryant
because the evidence showed convergence in any event. Id. at
250.

Here, although the evidence did show that Porat sought
to deceive U.S. News, it also showed that he made false
statements directly to his victims. For example, evidence
showed that Porat approved emails to students and student
recruiters touting the rankings, celebrated the high rankings
with students, represented that the high rankings would bring
students future benefits, and was involved in Fox’s marketing
campaigns to advertise its rankings to potential applicants.
Thus, as in Bryant, the evidence was sufficient to convict Porat
even if convergence were required.

However, we also reject Porat’s argument because we
hold that the wire fraud statute does not require convergence.
Nothing in the text of the statute supports such a requirement.
See, e.g., Christopher, 142 F.3d at 54 (“Nothing in the mail and
wire fraud statutes requires that the party deprived of money or
property be the same party who is actually deceived.”). Neither
do our precedents limit wire fraud in this way. Accordingly,
we join our sister circuits in rejecting the so-called
convergence requirement and hold that a defendant need not
deceive the same party he defrauds of money.

III. CONCLUSION

For the foregoing reasons, we will affirm the District
Court’s judgment and conviction order.

21
 United States v. Moshe Porat
No. 22-1560

KRAUSE, Circuit Judge, concurring.

I join my learned colleague’s excellent opinion in full.
In this case, we did not need to expound on the line between
deceit and federal wire fraud because a rational jury could
easily conclude on this record that it was crossed by Porat. I
write separately to reinforce that the Supreme Court and our
sister circuits have identified such a line, and the Constitution
requires us to police it rigorously.

Not every tort or breach of contract claim can (or
should) be prosecuted as a federal crime. In the context of the
myriad state-law civil claims and criminal offenses that are
available to vindicate the rights of victims of deceits or mere
fraudulent inducements, the Supreme Court and appellate
courts have repeatedly emphasized that due process and
federalism principles require the government to proceed with
caution when bringing fraud prosecutions. And yet, there is a
continued need for vigilance, lest prosecutors convert the fraud
statutes—and the lengthy prison sentences that they can
trigger—into tools to regulate good morals and business ethics.

In an effort to reduce that risk, I will review, first, the
historical treatment of intangible property rights and the need
to cabin what counts as criminal fraud; and, second, the recent
appellate decisions engaged in this line-drawing exercise and
the lessons they teach for distinguishing tortious
misrepresentations from criminal fraud offenses.

1
I. The Historical Treatment of Intangible Property Rights

The problem that Porat’s appeal poses is not new. There
long has been a tug-of-war over the breadth of the fraud
statutes. Originally passed in 1872, the first mail fraud law fell
into prosecutors’ lap at a time when Congress was articulating
a broad role for the federal government in protecting all
Americans, whether it be from racist violence or new,
dangerous drugs. See Erin C. Blondel, The Structure of
Criminal Federalism, 98 Notre Dame L. Rev. 1037, 1068–69
(2023). At the same time, the national economy was rapidly
growing and integrating, presenting opportunities for
deception on a previously unthinkable scale. Jed S. Rakoff,
The Federal Mail Fraud Statute (Part I), 18 Duq. L. Rev. 771,
780 (1980).

While defrauding someone always has required
“wronging one in his property rights,” 1 Hammerschmidt v.
United States, 265 U.S. 182, 188 (1924), prosecutors, with the
courts’ approval, defined “property” impossibly broadly,
transforming the mail fraud statute into a scheme to enforce
“moral rectitude in commercial matters,” Tai H. Park, The
“Right to Control” Theory of Fraud: When Deception Without
Harm Becomes a Crime, 43 Cardozo L. Rev. 135, 144 (2021).
Guilty verdicts could stand even when no one had lost tangible
property; the bar to securing a conviction was low, and our
circuit was no exception. See, e.g., United States v. Clapps,

1
Even in the fraud statute’s earliest form, materially
misleading false advertising that went beyond mere puffery
could form the basis for a conviction. See United States v. New
S. Farm & Home Co., 241 U.S. 64, 71 (1916).

2
732 F.2d 1148, 1150 (3d Cir. 1984). In this era, the fraud
statutes became federal prosecutors’ “Stradivarius, our Colt 45,
our Louisville Slugger, our Cuisinart—and our true love.”
Rakoff, supra, at 771.

That era should have come to a grinding halt thirty-six
years ago, when the Supreme Court held in McNally v. United
States that the fraud statutes are “limited in scope to the
protection of property rights” only. 483 U.S. 350, 360 (1987)
(emphasis added). And in the decades since then, the Court
has made clear that the fraud statutes do not enact Article III
judges’ sense “of moral uprightness, of fundamental honesty,
fair play and right dealing,” Skilling v. United States, 561 U.S.
358, 418 (2010) (Scalia, J., concurring) (quoting Blachly v.
United States, 380 F.2d 665, 671 (5th Cir. 1967)), or “standards
of disclosure and good government for local and state
officials,” Kelly v. United States, 140 S. Ct. 1565, 1571 (2020)
(quotation omitted). “If Congress desires to go further,” the
Court has admonished, “it must speak more clearly than it has.”
McNally, 483 U.S. at 360.

Yet federal prosecutors have continued to proffer novel
theories of liability that run afoul of these dictates, each time
requiring the Supreme Court to step in and overturn the
conviction. In Skilling, to avoid due process problems, the
Court limited prosecutions for the deprivation of “honest
services” under 18 U.S.C. § 1346 to bribes or kickbacks. 2 561

2
In Skilling, the former CEO of Enron had been
charged, inter alia, with honest services fraud for participating
in a wide-ranging conspiracy to misrepresent the company’s
financial health. 561 U.S. at 369. The indictment alleged that,

3
U.S. at 404. In Kelly, it held that “a property fraud conviction
cannot stand when the loss to the victim is only an incidental
byproduct of the scheme,” 140 S. Ct. at 1573, regardless of
whether the deprivation of cognizable property was
“foreseen,” id. at 1574. It still must be “an ‘object of the
fraud.’” 3 Id. at 1573 (citation omitted).

And just this spring, the Court negated the so-called
“right to control” theory of property fraud, Ciminelli v. United
States, 143 S. Ct. 1121, 1128 (2023), rejecting the Second
Circuit’s view that the victim’s “right to control . . . his or her
own assets” was cognizable property protected by the fraud
statutes, United States v. Binday, 804 F.3d 558, 570 (2d Cir.
2015) (quoting United States v. Carlo, 507 F.3d 799, 802 (2d
Cir. 2007)). The Second Circuit treated the deprivation “of
information necessary to make discretionary economic
decisions,” id. (quoting United States v. Rossomando, 144 F.3d

by participating in this conspiracy, Skilling had deprived the
company and its investors of his honest services—an
interpretation of § 1346 that the Court agreed with Skilling
would have been void for vagueness, id. at 412—so his
conduct fell outside the statute’s reach when properly
construed, id. at 413.
3
The defendants in Kelly had deprived the Port
Authority of New York and New Jersey of the money it used
to pay traffic engineers and toll collectors as part of their
scheme to take revenge on a political opponent, but that was
not enough to sustain their convictions. That money, the Court
concluded, “was incidental to—the mere cost of
implementing”—the scheme. Id. at 1572.

4
197, 201 n.5 (2d Cir. 1998)), coupled with a material
misrepresentation, as sufficient to constitute federal criminal
fraud, even when the victim was not any worse off
economically.

The Supreme Court found that theory bereft of
longstanding roots “in traditional property notions.” Ciminelli,
143 S. Ct. at 1128. Congress may have expanded the definition
of property to reach some intangible rights in some contexts
(as narrowed by Skilling, bribes and kickbacks), but it had said
nothing about “other such intangible interests.” Id. (alteration
omitted) (quoting United States v. Sadler, 750 F.3d 585, 591
(6th Cir. 2014)). And the infirmities the Court identified with
the right to control theory went beyond precedent, text, or
structure. The theory also “vastly expand[ed] federal
jurisdiction without statutory authorization. Because the
theory treat[ed] mere information as the protected interest,
almost any deceptive act could be criminal . . . mak[ing] a
federal crime of an almost limitless variety of deceptive actions
traditionally left to state contract and tort law.” Id.

As apparent from this review, three important
constitutional principles undergird this jurisprudence: notice,
federalism, and self-governance. First, the Fifth Amendment
bars enforcement of impermissibly vague criminal laws. See,
e.g., Johnson v. United States, 576 U.S. 591, 595 (2015). This
“void-for-vagueness doctrine . . . guarantees that ordinary
people have ‘fair notice’ of the conduct a statute proscribes.”
Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (quoting
Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972)); see
also United States v. Amirnazmi, 645 F.3d 564, 588 (3d Cir.
2011) (“A statute is void on vagueness grounds if it . . . fails to
provide people of ordinary intelligence a reasonable

5
opportunity to understand what conduct it prohibits.” (internal
quotation marks and citation omitted)). Otherwise, the
criminal laws would unduly chill perfectly legal conduct, and
law-abiding people would have to “steer far wider of the
unlawful zone” than necessary to mitigate the risk of
prosecution. Baggett v. Bullitt, 377 U.S. 360, 372 (1964)
(quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The
constraints that the Court has imposed in McNally, Skilling,
Kelly, and Ciminelli promote this due process principle.

Second, principles of federalism also inform the bounds
of federal criminal law. See Bond v. United States, 572 U.S.
844, 859 (2014). The Supreme Court has long been concerned
with the constitutional problems that arise where federal
statutes “render [] ‘traditionally local criminal conduct’ . . . ‘a
matter for federal enforcement.’” Jones v. United States, 529
U.S. 848, 858 (2000) (quoting United States v. Bass, 404 U.S.
336, 350 (1971)). Thus, “[u]nless the text requires us to do so,
we should not construe [criminal statutes] as a plenary ban on
fraud,” because doing so would “‘effect a significant change in
the sensitive relation between federal and state criminal
jurisdiction.’” Loughrin v. United States, 573 U.S. 351, 362
(2014) (quoting Bond, 572 U.S. at 858–59); see also Cleveland
v. United States, 531 U.S. 12, 27 (2000) (“Absent clear
statement by Congress, we will not read the mail fraud statute
to place under federal superintendence a vast array of conduct
traditionally policed by the States.”). Limitations on the fraud
statutes therefore respect the distinct spheres of federal and
state prosecutors. 4

4
The canon of construction articulated in Cleveland is
consistent with recent scholarship recounting the legislative

6
 Third, meaningful bounds on theories of fraud liability
are also essential to self-governance and a republican form of
government: “[I]f failure to meet the aspirational standards of
moral rectitude” articulated in cases like Blachly “were a
crime, all but the most saintly would be wholly at the mercy of
federal prosecutors[.]” Park, supra, at 195. Novel theories of
liability like the right to control thus create “a new line of
criminality” lacking “the imprimatur of democratic consensus”
and reflecting only what “prosecutors and judges . . .
‘personally disapprove . . . for no better reason than that [they]
disapprove it.’” Id. at 193 (quoting Jordan v. De George, 341
U.S. 223, 242 (1951) (Jackson, J., dissenting)). Cases like
Ciminelli and Skilling thus also protect the constitutionality of
the fraud statutes by ensuring that they cover only conduct
proscribed by the people’s representatives.

II. The Line Between Deceit and Criminal Fraud

To safeguard these principles, prosecutors must not
cross, and we must police, the boundary that the Court has
drawn around 18 U.S.C. § 1343: “the wire fraud statute reaches
only traditional property interests.” Ciminelli, 143 S. Ct. at
1128 (emphasis added); see also Pasquantino v. United States,

history of the fraud statutes, which concludes that Congress
“designed the [original mail fraud] statute primarily to protect
against harms to a direct federal interest: the postal system and
the post office establishment.” Norman Abrams, Uncovering
the Legislative Histories of the Early Mail Fraud Statutes: The
Origin of Federal Auxiliary Crimes Jurisdiction, 2021 Utah L.
Rev. 1079, 1081.

7
544 U.S. 349, 356 (2005) (limiting the fraud statutes’ reach to
what is “ordinarily” understood as property). Nothing more.
So where is that line, and how can we be sure that Porat crossed
it?

On the one hand, “even if a defendant lies, and even if
the victim made a purchase because of that lie, a wire-fraud
case must end in an acquittal if the jury nevertheless believes
that the alleged victims ‘received exactly what they paid for.’”
United States v. Takhalov, 827 F.3d 1307, 1314 (11th Cir.
2016) (quoting United States v. Shellef, 507 F.3d 82, 108 (2d
Cir. 2007)). In other words, while “schemes that depend for
their completion on a misrepresentation of an essential element
of the bargain” can be federal crimes, “schemes that do no
more than cause their victims to enter into transactions they
would otherwise avoid” are not. Shellef, 507 F.3d at 108; see
also United States v. Starr, 816 F.2d 94, 100 (2d Cir. 1987).
And this limitation makes good sense. After all, if a putative
victim of wire fraud got exactly what he paid for, how exactly
is he a victim at all? What property did he lose?

That was the Sixth Circuit’s reasoning in overturning a
wire fraud conviction against a defendant who had induced a
drug distributor to sell controlled substances by
misrepresenting the identity of her customers (in reality,
addicts and doctors) but had paid in full:

All that the evidence shows is that [the defendant] paid full
price for all the drugs she purchased and did so on time. How,
then, did [she] deprive the distributors of property? The
government’s opening bid offers this answer: [she] deprived
the distributors of their pills. Well, yes, in one sense: The pills
were gone after the transaction. But paying the going rate for

8
a product does not square with the conventional understanding
of “deprive.”

Sadler, 750 F.3d at 590. Nor would the court uphold
the defendant’s conviction on the ground that her “lies
convinced the distributors to sell controlled substances that
they would not have sold had they known the truth.” Id.
Instead, presaging the Supreme Court’s rejection of the right to
control in Ciminelli, the Sixth Circuit held that the “ethereal
right to accurate information” does not satisfy McNally. Id. at
591.

That was also the D.C. Circuit’s reasoning upholding
the dismissal of a wire fraud indictment against a foreign
service officer who lied about his relationships and finances to
maintain his Top Secret security clearance in United States v.
Guertin, 67 F.4th 445 (D.C. Cir. 2023). Drawing on Takhalov
and Shellef, the court held that “[i]f an employee’s untruths do
not deprive the employer of the benefit of its bargain, the
employer is not meaningfully defrauded[.]” Id. at 451. Absent
a “difference between the honest employee and dishonest
employee in terms of performance or pay,” lies to one’s
employer “merely deprive[] the employer of honesty as such,
which cannot serve as the predicate for a wire fraud
conviction.” 5 Id. (citing United States v. Yates, 16 F.4th 256,

5
The D.C. Circuit thus appears to have cast doubt on
another innovative interpretation of § 1343: the “salary
maintenance” theory of liability. The court rejected “the
Government’s theory . . . that whenever an employee lies about
a specific, concrete condition of employment . . . the employer
is defrauded of ‘money or property’ by paying the employee’s

9
267 (9th Cir. 2021)). A contrary rule, the court noted, would
jeopardize due process by “giv[ing] federal prosecutors carte
blanche to set the standards of disclosure and honesty in
employment.” Id. at 452; see also Ciminelli, 143 S. Ct. at
1128; United States v. Abdelaziz, 68 F.4th 1, 38 (1st Cir. 2023)
(rejecting the government’s understanding of what constitutes
“property” under McNally because it would “criminalize a
wide swath of conduct” such as “embellishments in a
kindergarten application”).

On the other hand, we recently affirmed a wire fraud
conviction in United States v. Kousisis, 66 F.4th 406 (3d Cir.
2023), over protests that the victims had not been deprived of
any property and had received the full benefit of the bargain.
There, the Pennsylvania Department of Transportation
(PennDOT), was administering two construction projects that
had “requirements” that a certain percentage of the contracts’
value be assigned to “disadvantaged business enterprises”
(DBEs). Id. at 411. The defendants told PennDOT that they
were working with a DBE, but the DBE in fact performed no
work and just collected a 2.25% fee for serving as a pass-
through for the real, non-DBE subcontractor. Id.

We identified two harms from this misrepresentation
that showed PennDOT did not get what it paid for and
distinguished the traditional property right at issue here from a
mere right to control the disposition of one’s assets based on

salary.” Guertin, 67 F.4th at 451; but see id. at 453 (declining
to adopt the Ninth Circuit’s distinction between lies to obtain a
new salary and lies to maintain an existing one to determine
the propriety of fraud indictments).

10
accurate information as in cases like Ciminelli. First, by lying
about their DBE affiliation, the defendants had “schemed to
have PennDOT pay them millions of dollars that they were
clearly not entitled to.” Id. at 418. Misrepresenting one’s
eligibility to obtain a contract is a longstanding form of
property fraud, see id. at 418–19; United States v. Ruzicka, 988
F.3d 997, 1008–09 (8th Cir. 2021), so the defendants’ scheme
had deprived PennDOT of cognizable property. Second,
PennDOT had “pa[id] a premium” for a specific service—DBE
involvement—that the defendants did not actually deliver. Id.
at 418. It was thus irrelevant that, as they had argued on appeal,
“their ‘offense conduct[] involve[d] high quality, timely and
fully performed work.’” Id. at 413. Regardless of the work’s
quality, PennDOT had not received the benefit of the bargain. 6

6
We also observed in a footnote in Kousisis that, even
if PennDOT had paid no such premium, the defendants’
“primary fraudulent objective to obtain [its] funds” would have
sufficed to sustain a wire fraud conviction. 66 F.4th at 418
n.69. I understand this to mean that the defendants committed
wire fraud whether they actually caused PennDOT to pay the
premium or merely intended that it would do so as part of the
fraud scheme. Either way, misrepresenting DBE status to
secure a contract for which the defendants were not eligible,
and to commit PennDOT to paying a premium under that
contract, violated § 1343. Obviously, if this footnote were read
as saying that the defendants’ wire fraud convictions could
stand if all they deprived PennDOT of was the right to control
how their funds were disbursed, Ciminelli would have
abrogated that conclusion just weeks later. 143 S. Ct. at 1127–
28.

11
 A few overarching lessons emerge from these cases
about when deceit rises to the level of fraud, each reinforcing
our holding today. First, the defendant’s misrepresentations
must relate to the transaction that the government alleges was
fraudulent, not some earlier transaction that “opened the door”
for a later, legitimate exchange. See Park, supra, at 156. For
example, in United States v. Regent Office Supply Company,
the government prosecuted a stationery company whose
salespeople lied and told their prospective customers, inter
alia, that a mutual friend had referred them, or the stationery
belonged to a deceased friend of the salesperson “and that the
customer would help to relieve [a] difficult situation by
purchasing it.” 421 F.2d 1174, 1176 (2d Cir. 1970). But those
lies served only “to ‘get by’ secretaries on the telephone and to
get ‘the purchasing agent to listen to [the salesperson],’” id. at
1177, so they did not affect whether the defendant’s
counterparty got the benefit of the bargain.

This was not mail fraud. Id. at 1179. The salespeople
had lied only to get past the door so that they could make their
pitch, but, once inside, their sales pitch did not misrepresent
“the quality or effectiveness of the thing being sold, or . . . the
advantages of the bargain which should accrue” if their
customers actually paid for the product. Id. at 1180.
Convicting a defendant for these lies would valorize a property
interest even further removed from tangible “money or
property” than the right to control theory that the Court rejected
in Ciminelli. See Sadler, 750 F.3d at 590–91. In contrast,
many prospective students who had been walking past Fox’s
proverbial door for years only decided to stop and pay the entry
fee after Fox hung out dozens of new, flashy signs advertising
its (false) rankings as a proxy for the quality of its programs.
Cf. Kousisis, 66 F.4th at 417–18.

12
 Second, as the majority eloquently puts it, the
defendant’s lies must be “the kind that could materially affect
present and future value.” Majority Op. at 16 n.6. Thus, in
Sadler, the court concluded the defendant’s lies did nothing to
affect the value of the pills in the hands of the victim-
distributors. 750 F.3d at 590. The distributors set a price, and
she met it. On the other hand, when deciding whether to make
“a costly, debt-inducing, once-in-a-lifetime ‘purchase’” of a
graduate business education, Majority Op. at 16 n.6, a
reasonable applicant would consider how matriculating to a
given school will affect his or her earnings potential. The
evidence here showed that the school’s rankings in U.S. News
were an important factor in that analysis. Accord Kousisis, 66
F.4th at 418. In this way, focusing the analysis on how the
misrepresentation in question affected the transaction’s value
prevents courts from turning the “ethereal right to accurate
information” into property that § 1343 protects. Sadler, 750
F.3d at 591.

Finally, the defendant must intend some economic harm
from the lies. Another Second Circuit opinion is instructive
here. In United States v. Starr, the government charged the
owners of a mail delivery company with fraud for bilking the
Postal Service out of over $400,000 by commingling more
expensive mail in piles of lower-rate mail and sending them
out in a single shipment. 816 F.2d at 96. But this was not “a
deceit on their customers,” so the defendants’ mail fraud
convictions could not stand. Id. at 99. As the court explained,
the defendants “in no way misrepresented to their customers
the nature or quality of the service they were providing,” so the
fact that the defendants had “misappropriat[ed] funds paid to
them to cover postage fees,” id., while deceitful, “ha[d] no

13
relevance to the object of the contract,” 7 so “any ‘harm’
intended by the [defendants] [wa]s, at most, metaphysical and
certainly not . . . sufficient to infer fraudulent intent.” Id. at
100. Intent to cause economic harm is the stuff wire fraud
charges are made of. And that is where Porat’s case differs
from the Starr defendants. In contrast to fraudulent
inducements that deprive the victim of information immaterial
to the transaction—the purview of state tort laws, see
Ciminelli, 143 S. Ct. at 1128—Porat’s lies clearly were
designed to—and did—convert members of the public into Fox
applicants and, ultimately, Fox students, generating some $40
million in additional tuition fees for the school over the course
of the conspiracy.

*****

A rational jury could conclude on this record that
Porat’s lies did more than just “open the door” for a legitimate
business transaction to take place; that they affected the
students’ understanding of the present and future value of their
business degree; and that Porat intended to induce them to pay
for something that was less valuable in the employment market
than they were led to believe. But the Government did not
prove, and we would not uphold, a wire fraud conviction
predicated on lies immaterial to the ultimate matriculation
decision. The line between tortious misrepresentations and

7
As in Regent, the Starrs’ lies also merely “opened the
door.” The fraudulent transaction was between them and the
Postal Service, not between them and their customers. Cf.
United States v. Fruchter, 104 F. Supp. 2d 289, 302 (S.D.N.Y.
2000).

14
federal criminal fraud thus remains bright, illuminated by the
principles of notice, federalism, and self-governance. With
these understandings in mind, I join the majority’s opinion in
full and concur in the Judgment.

15