Monday, December 20, 2004
On Dec. 16, the Third Circuit affirmed the mail fraud convictions of two men who participated in a scheme to buy scores for the Test of English as a Foreign Language (TOEFL) Exam, which is administered by the Educational Testing Service (ETS). United States v. Al Hedaithy. A passing score (usually 550) on the TOEFL is required by most colleges for admission to undergraduate and graduate programs for those whose first language is not English. The defendants, who paid to have the exam taken for them by an impostor, argued that the Mail Fraud Statute (18 U.S.C. § 1344) did not apply to the scheme in which the TOEFL score was mailed to a drop in California, where the reports were doctored to substitute the defendants' pictures for the impostor and then mailed to schools in fake ETS envelopes. The government's superseding indictment alleged that ETS was the victim of the scheme and that it lost valuable confidential information through the use of the impostors to obtain a passing TOEFL score. The Third Circuit rejected the defendants arguments that first, the TOEFL scores were not property, holding that the confidential information and scores were valuable property interests of ETS; and second, that under Cleveland v. U.S. (531 U.S. 12 (2000)) the scores were like government licenses before they are issued to the test-taker, holding that the fact that property may not be valuable in the hands of the victim does not mean that it cannot constitute property subject to the Mail Fraud Statute.
The Third Circuit's decision shows once again--in case anyone needed reminding--that the mail fraud statute is the great catch-all provision for dishonest conduct that results in a gain to the defendant and some articulable loss to the victim, even if there is no direct connection between the gain and loss. The defendants were not sentenced to any prison time, but as aliens they are ineligible to remain in the United States because of the felony conviction. (ph)