Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner and urging reversal.

Argument: The theft-of-honest-services statute¸18 U.S.C. §1346, is void for vagueness; also, the presumption of prejudice that arises from intense community hostility and pervasive adverse publicity cannot be rebutted through voir dire.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner.

Argument: The federal “honest services” fraud statute, 18 U.S.C. 1346, raises critical constitutional concerns in that it (i) is unconstitutionally vague and fails to provide the degree of fair warning of its scope or meaning, as required by the Due Process Clause, and (ii) invades a regulatory area constitutionally committed to the states under the doctrine of federalism.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York Council of Defense Lawyers in support of petitioners.

Argument: Section 1346 violates due process requirements by (i) not providing fair warning, at the time of the offense, of what conduct is prohibited, and (ii) failing to be clear and specific enough to inform the public of precisely what conduct is prohibited and cabining law enforcement’s discretion within reasonable limits. In addition, interpretation of Section 1346 to impose a federal-law duty to provide “honest services” irrespective of state law would invite federal courts to create a federal common law of honest dealing, an approach which has been anathema for two centuries. The Seventh Circuit’s forfeiture rule would unfairly compel defendants either to accept prejudicial interrogatories or to forfeit objections to prejudicial instructional error.