Was "Varsity Blues" Actually a Crime? The Supreme Court's Crusade Against the Federal Mail and Wire Fraud Statutes

Abstract

On March 12, 2019, the U.S. Department of Justice (DOJ) shocked the nation when it unveiled an extensive college admissions scandal. Operation Varsity Blues, as the DOJ dubbed its investigation, resulted in fifty-seven people being charged with mail fraud, wire fraud, and variations thereof. Of those charged, fifty-one pleaded guilty and two were convicted by federal juries. Although these numbers suggest that Operation Varsity Blues has been a resounding success for federal prosecutors, many of those implicated are appealing their guilty pleas and convictions. Specifically, many argue that they never committed a crime at all because college entrance exam test scores and college admission are not “property” for the purposes of the federal mail and wire fraud statutes. Though the assertion that the college admissions scandal did not involve illegal conduct may be shocking given the American public’s visceral reaction to it, many worry that the Varsity Blues defendants may indeed be right. After all, when given the opportunity, the U.S. Supreme Court often confines the scope of mail and wire fraud by narrowly construing the statutes’ “money or property” element. In fact, in 2020, in Kelly v. United States, the Supreme Court did so yet again. This Note outlines the statutory and common law background of the mail and wire fraud statutes, specifically with respect to the “money or property” element. It then analyzes judicial interpretations of property under the mail and wire fraud statutes. Finally, this Note argues that the statutes and their interpretations should not doom the federal government’s efforts to prosecute Varsity Blues defendants. This is so because under Carpenter v. United States and its progeny, college admission arguably constitutes an “intangible property right” that satisfies the “money or property” requirement in the federal mail and wire fraud statutes.