Supreme Court Name-Checks Kim Kardashian While Trying To Define A Legal Term

WASHINGTON ― The Supreme Court, in the course of trying to pin down what exactly constitutes bank fraud under federal law, brought up an unexpected name on Tuesday: reality star Kim Kardashian, who was robbed at gunpoint in Paris early Monday.

One of the cases the justices heard on Tuesday, the first day of oral arguments of their new term, dealt with whether a law that criminalizes schemes “to defraud a financial institution” requires the prosecution to prove that the bank actually took a financial hit.

As the high court tried to get to the bottom of this legal question, Justice Stephen Breyer ― who knows a thing or two about being robbed while abroad ― pondered Kardashian’s ordeal, in which five men reportedly bound her with zip ties and duct tape and robbed her of over $10 million worth of jewelry.

“Even Kardashian’s thief, if there is one,” began Breyer, who then went on to wonder whether a person who showed up on the reality star’s hotel doorstep and pretended to be a jewelry cleaner for the sole purpose of stealing her gems would be committing fraud in a legal sense.

“I’m asking you,” Breyer said, “if the local person comes to the door and says, ‘Dear Miss Kardashian, I am your local jewelry cleaner. Please give me your jewelry.’ She does. And that’s not fraud. He wanted to get the jewelry ... He also believes that [her] friend had just loaned it for the evening, that she’s triple insured, that she won’t even lose any money because the publicity will be worth it. OK?”

To be clear, Breyer is describing a scenario that didn’t happen. Nobody tried to pose as a jewelry cleaner during the actual Kardashian robbery, which all accounts suggest was a pretty traumatic experience. (Prior to Breyer’s comments Tuesday, some gross conspiracy theorists were already speculating that the whole thing was a hoax, even though there’s no reason to believe Kardashian’s account is false.)

But Breyer is known for spinning lengthy hypothetical scenarios from the bench, and here he was clearly speaking in the realm of the theoretical ― all with an eye toward solving a textual legal question. (For context, here’s the hearing transcript.)

The Supreme Court got off to a slow start on Tuesday in an unprecedented term that finds them one justice short ahead of the November election ― the first time that’s happened in nearly 150 years, according to one legal historian. So far, no major blockbuster cases have been added to the court’s docket, presumably due to the vacancy.

Breyer, for his part, seemed honestly curious as to the proper reading of the federal bank fraud statute, which courts across the country have applied unevenly, requiring different kinds of proof from prosecutors in different circumstances.

“What did this defendant have to know about this bank, if anything?” asked a puzzled Justice Anthony Kennedy, who alongside the rest of his colleagues spent nearly an hour trying to determine to what extent a financial institution has to suffer an actual loss before prosecutors can charge a scheming fraudster.

Lawrence Shaw, the petitioner in the case, was convicted for defrauding not a bank, but an innocent victim from whose bank account Shaw illicitly transferred about $307,000. The bank itself never actually lost any money, but prosecutors nailed Shaw anyway under a broad reading of what it means to “defraud” a bank.

For the Supreme Court, which has lately taken to reading some criminal statutes as narrowly as possible, the question could lead to a favorable ruling for Shaw, since he is more or less arguing that he never intended to defraud the bank itself ― even though there’s no question he took steps to steal from the actual victim.

He’s urging the court to adopt a “defendant-friendly” definition that may rein in prosecutorial overreach ― a view that is supported by the National Association of Criminal Defense Lawyers, which filed a brief supporting Shaw’s position.

The government, on the other hand, says it doesn’t have to prove that Shaw intended to cheat the bank of actual funds ― only that he intended to deprive it of something of value by using deceit.

Which side has the better argument will be settled in the coming months, when the high court is expected to decide the case.