Honest Services Fraud


	Print or Email This Page Honest Services Fraud Honest Services Fraud Filings and Decisions Bank (Members Only) On July 14, 2010, NACDL and the ABA Criminal Justice Section White Collar Crime Committee Public Corruption Subcommittee co-sponsored: Judgment Day: The Supreme Court Rules On Honest Services Fraud Understanding the Outcome and Its Ramifications This program, which is the first installment of NACDL's 2010 White Collar Summer Series, examined the Supreme Court's much anticipated ruling on the federal "honest services fraud" statute, 18 U.S.C. � 1346, and the ramifications it will have on public corruption prosecution and defense. The panel was moderated by Ross H. Garber of Shipman & Goodwin LLP, and included Abbe David Lowell (McDermott Will & Emery), Timothy P. O'Toole (Miller & Chevalier), Ellen S. Podgor (Stetson University College of Law), and Cynthia Hujar Orr (President of NACDL). Click here to access a free audio recording on this program. On June 24, 2010, in Skilling v. United States, the Supreme Court vacated Mr. Skilling’s conviction and remanded because the indictment relied, in part, on what the Court called “an improper construction of the ‘honest services’ component of the federal ban on mail [and wire] fraud.” The Supreme Court held that the “honest services” fraud statute, “properly confined,” criminalizes only schemes to defraud that involve bribes or kickbacks. So limited, the Court found that the law passes constitutional muster, though its application must stick to “core cases” involving dishonest personal gain of some kind. Agreeing with NACDL’s position, however, Associate Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy dissented from that portion of the honest services cases decided today, as they would have found that the statute is simply unconstitutionally vague. Read NACDL's full press release here. On Monday, March 1, 2010, the Supreme Court heard oral argument in its third “honest services” fraud case this term, Jeffrey K. Skilling v. United States. Last fall, on Tuesday, December 8, 2009, the Supreme Court heard oral arguments in two high–profile “honest services” fraud cases, Conrad M. Black v. United States and Bruce Weyhrauch v. United States. In his often–quoted dissent from denial of certiorari in Sorich v. United States, Justice Scalia wrote: “If the ’honest services’ theory ... is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection [and] a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation .... Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.” NACDL is deeply concerned by the vagueness and federalism problems of 18 U.S.C. �1346, the “honest services” statute. Due process requires that a criminal law give fair warning, at the time of the offense, of what conduct is prohibited, and therefore NACDL has filed amicus briefs in all three of the above cases arguing that the law is unconstitutional. Those amicus briefs can be found here: *Conrad M. Black v. United States, Weyhrauch v. United States* and *Skilling v. United States. We invite you to learn more by viewing “Legislating Chaos: Has Congress Made Playing Hooky a Federal Crime?”, an NACDL and Heritage Foundation jointly-sponsored program recorded on December 7, 2009, featuring Timothy P. O’Toole of Miller & Chevalier (Counsel for Defendant, United States v. Kevin Ring), John D. Cline of Jones Day (Amicus counsel for NACDL, Skilling v. United States), Thomas A. Hagemann of Gardere Wynne Sewell (Counsel for Defendant, United States v. Brown et. al.) and moderated by Shana–Tara Regon, Director of White Collar Crime Policy for NACDL. We also invite you to view “Honest Services Fraud before the Supreme Court: What to Expect and What is at Stake,”* an NACDL and Washington Legal Foundation jointly-sponsored program recorded on December 2, 2009, featuring Jonathan Marcus of Covington & Burling (Amicus counsel for NACDL, Conrad Black v. United States), Richard Craig Smith of Fulbright & Jaworski (former Acting Chief and Principal Deputy Chief for Litigation, DOJ Fraud Section), Brady Dugan of Akin Gump Strauss Hauer & Feld (former Asst. U.S. Attorney, DOJ Antitrust Division), and moderated by the Honorable Richard Thornburgh of K&L Gates (former United States Attorney General). These programs and other press-specific events, including press calls sponsored by the Federalist Society, served as valuable resources for the significant media attention to this important matter, coverage of which yielded hundreds of news stories in the news cycles during and following the arguments. For example, Bloomberg Business Week covered the Skilling case in a March 1, 2010, article, Skilling Seeks New Trial Without ‘Tar and Feathers,’ which cited to comments by NACDL Board Member Timothy P. O’Toole. O’Toole was also a panelist at the December 7, 2009, NACDL/Heritage co-sponsored event on Capitol Hill, and appeared on December 8, 2009, on American Public Media’s public radio program, “Marketplace” on the subject of the Honest Services Fraud cases argued before the Supreme Court that day (“SC could scale back anti-corruption law”). Barry Pollack, Co-Chair At Large of NACDL’s White Collar Crime Section, got the last word in Enron’s hometown coverage in the Houston Chronicle, Did Skilling Get a Fair Shake Here? In a McClatchy story, appearing in papers from Seattle to Miami, NACDL’s White Collar Crime Policy Director Shana-Tara Regon pointedly explained that “The statute is 28 words, and no one knows what it means.” (“Piece of ex-Alaska Rep. Weyhrauch's case goes to Supreme Court”) And NACDL member Bill Mateja penned an Op-ed in the Dallas Morning News, “Supreme Court should void 'honest services'” in which he also discusses NACDL’s important coalition work: “To this end, Congress heard testimony last summer from strange bedfellows who have formed a coalition to bring ‘overcriminalization’ to lawmakers' attention, namely, the American Bar Association, American Civil Liberties Union, Cato Institute, Constitution Project, Federalist Society, Heritage Foundation, National Association of Criminal Defense Lawyers, and Washington Legal Foundation.” After decades of federal enforcement of the “honest services” statute, the recent and focused attention of the Court, lawmakers, media, and the public will hopefully generate long-overdue reform.
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