Brief filed: 02/12/2021
United States v. Blaszczak
2nd Circuit Court of Appeals; Case No. 18-2811
Prior panel decision 947 F.3d 19
The Second Circuit’s prior decision in this case—holding that wholly intangible government information could become “property” by virtue of an agency labeling that information “confidential”—transforms the federal fraud statutes and the theft of government property offense into official-secrets acts. The U.S. Supreme Court’s decision in Kelly v. United States, issued days after the Second Circuit denied rehearing en banc, fundamentally undermined the panel’s construction of “thing of value” in the theft of government property statute, 18 U.S.C. § 641. Applying traditional tools of statutory interpretation, the Court should reject the government’s unbounded theory of property, which would render targeted information-control statutes surplusage and criminalize core First Amendment activity.
Peter Neiman, Nicholas Werle, Jessica Lutkenhaus, and Cary Glynn, Wilmer Cutler Pickering Hale and Dorr LLP, New York City and Washington, D.C.; Lindsay Lewis, NACDL, New York City.