This case presents the question whether the federal mail fraud statute, 18 U. S. C. § 1341, reaches false statements made in an application for a state license. Section 1341 proscribes use of the mails in furtherance of "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." Petitioner Carl W. Cleveland and others were prosecuted under this federal measure for making false statements in applying to the Louisiana State Police for permission to operate video poker machines. We conclude that permits or licenses of this order do not qualify as "property" within § 1341's compass. It does not suffice, we clarify, that the object of the fraud may become property in the recipient's hands; for purposes of the mail fraud statute, the thing obtained must be property in the hands of the victim. State and municipal licenses in general, and Louisiana's video poker licenses in particular, we hold, do not rank as "property," for purposes of § 1341, in the hands of the official licensor.
Louisiana law allows certain businesses to operate video poker machines. La. Rev. Stat. Ann. §§ 27:301 to 27:324 (West Supp. 2000). The State itself, however, does not run such machinery. The law requires prospective owners of video poker machines to apply for a license from the State. § 27:306. The licenses are not transferable, § 27:311(G), and must be renewed annually, La. Admin. Code, tit. 42, § 2405(B)(3) (2000). To qualify for a license, an applicant must meet suitability requirements designed to ensure that licensees have good character and fiscal integrity. La. Rev. Stat. Ann. § 27:310 (West Supp. 2000).
In 1992, Fred Goodson and his family formed a limited partnership, Truck Stop Gaming, Ltd. (TSG), in order to participate in the video poker business at their truck stop in Slidell, Louisiana. Cleveland, a New Orleans lawyer, assisted
TSG's application identified Goodson's adult children, Alex and Maria, as the sole beneficial owners of the partnership. It also showed that Goodson and Cleveland's law firm had loaned Alex and Maria all initial capital for the partnership and that Goodson was TSG's general manager. In May 1992, the State approved the application and issued a license. TSG successfully renewed the license in 1993, 1994, and 1995 pursuant to La. Admin. Code, tit. 42, § 2405(B)(3) (2000). Each renewal application identified no ownership interests other than those of Alex and Maria.
In 1996, the Federal Bureau of Investigation (FBI) discovered evidence that Cleveland and Goodson had participated in a scheme to bribe state legislators to vote in a manner favorable to the video poker industry. The Government charged Cleveland and Goodson with multiple counts of money laundering under 18 U. S. C. § 1957, as well as racketeering and conspiracy under § 1962. Among the predicate acts supporting these charges were four counts of mail fraud under § 1341.
Before trial, Cleveland moved to dismiss the mail fraud counts on the ground that the alleged fraud did not deprive the State of "property" under § 1341. The District Court denied the motion, concluding that "licenses constitute property even before they are issued." 951 F.Supp. 1249, 1261 (ED La. 1997). A jury found Cleveland guilty on two counts of mail fraud (based on the 1994 and 1995 license renewals) and on money laundering, racketeering, and conspiracy counts predicated on the mail fraud. The District Court sentenced Cleveland to 121 months in prison.
On appeal, Cleveland again argued that Louisiana had no property interest in video poker licenses, relying on several Court of Appeals decisions holding that the government does not relinquish "property" for purposes of § 1341 when it issues a permit or license. See United States v.Shotts, 145 F.3d 1289, 1296 (CA11 1998) (license to operate a bail bonds business); United States v. Schwartz, 924 F.2d 410, 418 (CA2 1991) (arms export license); United States v. Granberry, 908 F.2d 278, 280 (CA8 1990) (school bus operator's permit); Toulabi v. United States, 875 F.2d 122, 125 (CA7 1989) (chauffeur's license); United States v. Dadanian, 856 F.2d 1391, 1392 (CA9 1988) (gambling license); United States v.
The Court of Appeals for the Fifth Circuit nevertheless affirmed Cleveland's conviction and sentence, United States v. Bankston, 182 F.3d 296, 309 (1999), considering itself bound by its holding in United States v. Salvatore, 110 F.3d 1131, 1138 (1997), that Louisiana video poker licenses constitute "property" in the hands of the State. Two other Circuits have concluded that the issuing authority has a property interest in unissued licenses under § 1341. United States v. Bucuvalas, 970 F.2d 937, 945 (CA1 1992) (entertainment and liquor license); United States v. Martinez, 905 F.2d 709, 715 (CA3 1990) (medical license).
We granted certiorari to resolve the conflict among the Courts of Appeals, 529 U.S. 1017 (2000), and now reverse the Fifth Circuit's judgment.
In McNally v. United States, 483 U.S. 350, 360 (1987), this Court held that the federal mail fraud statute is "limited in scope to the protection of property rights." McNally reversed the mail fraud convictions of two individuals charged with participating in "a self-dealing patronage scheme" that defrauded Kentucky citizens of "the right to have the Commonwealth's affairs conducted honestly." Id., at 352. At the time McNally was decided, federal prosecutors had been using § 1341 to attack various forms of corruption that deprived victims of "intangible rights" unrelated to money or property.
As first enacted in 1872, § 1341 proscribed use of the mails to further "`any scheme or artifice to defraud.' " Ibid. In 1896, this Court held in Durland v. United States, 161 U.S. 306, 313, that the statute covered fraud not only by "representations as to the past or present," but also by "suggestions and promises as to the future." In 1909, Congress amended § 1341 to add after "any scheme or artifice to defraud" the phrase "or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." McNally, 483 U. S., at 357. We explained in McNally that the 1909 amendment "codified the holding of Durland, " ibid., and "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," ibid. Rejecting the argument that "the money-orproperty requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property," id., at 358, we concluded that the 1909 amendment signaled no intent by Congress to "depar[t] from [the] common understanding" that "the words `to defraud' commonly refer `to wronging one in his property rights,' " id., at 358-359 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)).
Soon after McNally, in Carpenter v. United States, 484 U.S. 19, 25 (1987), we again stated that § 1341 protects property rights only. Carpenter upheld convictions under § 1341 and the federal wire fraud statute, 18 U. S. C. § 1343, of defendants who had defrauded the Wall Street Journal of confidential business information. Citing decisions of this Court as well as a corporate law treatise, we observed that "[c]onfidential business information has long been recognized as property." 484 U. S., at 26.
The following year, Congress amended the law specifically to cover one of the "intangible rights" that lower courts had
In this case, there is no assertion that Louisiana's video poker licensing scheme implicates the intangible right of honest services. The question presented is whether, for purposes of the federal mail fraud statute, a government regulator parts with "property" when it issues a license. For the reasons we now set out, we hold that § 1341 does not reach fraud in obtaining a state or municipal license of the kind here involved, for such a license is not "property" in the government regulator's hands. Again, as we said in McNally, "[i]f Congress desires to go further, it must speak more clearly than it has." 483 U. S., at 360.
To begin with, we think it beyond genuine dispute that whatever interests Louisiana might be said to have in its video poker licenses, the State's core concern is regulatory. Louisiana recognizes the importance of "public confidence and trust that gaming activities . . . are conducted honestly
In short, the statute establishes a typical regulatory program. It licenses, subject to certain conditions, engagement in pursuits that private actors may not undertake without official authorization. In this regard, it resembles other licensing schemes long characterized by this Court as exercises of state police powers. E. g., Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939) (license to transport alcoholic beverages); Hall v. Geiger-Jones Co., 242 U.S. 539, 558 (1917) (license to sell corporate stock); Fanning v. Gregoire, 16 How. 524, 534 (1854) (ferry license); License Cases, 5 How. 504, 589 (1847) (license to sell liquor) (opinion of McLean, J.),overruled on other grounds, Leisy v. Hardin, 135 U.S. 100 (1890).
Acknowledging Louisiana's regulatory interests, the Government offers two reasons why the State also has a property interest in its video poker licenses. First, the State receives a substantial sum of money in exchange for each license and continues to receive payments from the licensee as long as the license remains in effect. Second, the State
Without doubt, Louisiana has a substantial economic stake in the video poker industry. The State collects an up front "processing fee" for each new license application, La. Rev. Stat. Ann. § 27:311(H)(2) (West Supp. 2000) ($10,000 for truck stops), a separate "processing fee" for each renewal application, § 27:311(H)(4) ($1,000 for truck stops), an "annual fee" from each device owner, § 27:311(A)(4) ($2,000), an additional "device operation" fee, § 27:311(A)(5)(c) ($1,000 for truck stops), and, most importantly, a fixed percentage of net revenue from each video poker device, § 27:311(D)(1)(b) (32.5% for truck stops). It is hardly evident, however, why these tolls should make video poker licenses "property" in the hands of the State. The State receives the lion's share of its expected revenue not while the licenses remain in its own hands, but only after they have been issued to licensees. Licenses pre-issuance do not generate an ongoing stream of revenue. At most, they entitle the State to collect a processing fee from applicants for new licenses. Were an entitlement of this order sufficient to establish a state property right, one could scarcely avoid the conclusion that States have property rights in any license or permit requiring an up front fee, including drivers' licenses, medical licenses, and fishing and hunting licenses. Such licenses, as the Government itself concedes, are "purely regulatory." Tr. of Oral Arg. 24-25.
Tellingly, as to the character of Louisiana's stake in its video poker licenses, the Government nowhere alleges that Cleveland defrauded the State of any money to which the State was entitled by law. Indeed, there is no dispute that TSG paid the State of Louisiana its proper share of revenue, which totaled more than $1.2 million, between 1993 and 1995. If Cleveland defrauded the State of "property," the nature of that property cannot be economic.
The Government compares the State's interest in video poker licenses to a patent holder's interest in a patent that she has not yet licensed. Although it is true that both involve the right to exclude, we think the congruence ends there. Louisiana does not conduct gaming operations itself, it does not hold video poker licenses to reserve that prerogative, and it does not "sell" video poker licenses in the ordinary commercial sense. Furthermore, while a patent holder may sell her patent, see 35 U. S. C. § 261 ("patents shall have the attributes of personal property"), the State may not sell its licensing authority. Instead of a patent holder's interest in an unlicensed patent, the better analogy is to the Federal Government's interest in an unissued patent. That interest, like the State's interest in licensing video poker operations,
The Government also compares the State's licensing power to a franchisor's right to select its franchisees. On this view, Louisiana's video poker licensing scheme represents the State's venture into the video poker business. Although the State could have chosen to run the business itself, the Government says, it decided to franchise private entities to carry out the operations instead. However, a franchisor's right to select its franchisees typically derives from its ownership of a trademark, brand name, business strategy, or other product that it may trade or sell in the open market. Louisiana's authority to select video poker licensees rests on no similar asset. It rests instead upon the State's sovereign right to exclude applicants deemed unsuitable to run video poker operations. A right to exclude in that governing capacity is not one appropriately labeled "property." See Tr. of Oral Arg. 25. Moreover, unlike an entrepreneur or business partner who shares both losses and gains arising from a business venture, Louisiana cannot be said to have put its labor or capital at risk through its fee-laden licensing scheme. In short, the State did not decide to venture into the video poker business; it decided typically to permit, regulate, and tax private operators of the games.
We reject the Government's theories of property rights not simply because they stray from traditional concepts of property. We resist the Government's reading of § 1341 as well because it invites us to approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement by Congress. Equating issuance of licenses or permits with deprivation of property would subject to federal mail fraud prosecution a wide range of conduct traditionally regulated by state and local authorities. We note in this regard that Louisiana's video poker statute typically and unambiguously imposes criminal penalties for making false statements on license applications. La. Rev. Stat. Ann. § 27:309(A)
Moreover, to the extent that the word "property" is ambiguous as placed in § 1341, we have instructed that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812 (1971). This interpretive guide is especially appropriate in construing § 1341 because, as this case demonstrates, mail fraud is a predicate offense under RICO, 18 U. S. C. § 1961(1) (1994 ed., Supp. IV), and the money laundering statute, § 1956(c)(7)(A). In deciding what is "property" under § 1341, we think "it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 222 (1952).
Finally, in an argument not raised below but urged as an alternate ground for affirmance, the Government contends that § 1341, as amended in 1909, defines two independent offenses: (1) "any scheme or artifice to defraud" and (2) "any scheme or artifice . . .for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." Because a video poker license is property in the hands of the licensee, the Government says, Cleveland "obtain[ed] . . .property" and thereby committed the second offense even if the license is not property in the hands of the State.
Although we do not here question that video poker licensees may have property interests in their licenses,
We conclude that § 1341 requires the object of the fraud to be "property" in the victim's hands and that a Louisiana
It is so ordered.
Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Robin S. Conrad, Carter G. Phillips, Richard D. Bernstein, and Joseph S. Miller; and for Samsung Electronics Co. by Richard L. Stanley, Cecilia H. Gonzalez, David J. Healey, and Lisa S. McCalmont.