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Honest Services
By Ross H. Garber
Many Questions Remain for Honest Services Doctrine
The Supreme Court has now limited the scope of the “honest services”
provision of the federal mail and wire fraud laws, 18 U.S.C. § 1346.1
In Skilling v. United States,2 the Court held that the honest services
statute, which had become a sort of prosecutorial Swiss Army knife, is
now applicable only to bribery and kickback schemes and does not
criminalize more amorphous unseemly conduct such as undisclosed
self-dealing. Given that limitation, the Court determined that the
honest services provision is not unconstitutionally vague. According to
the Court in Skilling, “[a] criminal defendant who participated in a
bribery or kickback scheme … cannot tenably complain about prosecution
under § 1346 on vagueness grounds.”3 So the Supreme Court has brought
clarity to honest services issues? Maybe not so much. The following are
some initial reflections on the state of honest services law.
Bribery and Kickbacks in State G
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