Honest Services Fraud: The Trial Courts’Turn

Sarah Kelly & Megan Jeans

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Much hay has been made of the Supreme Court’s 2010 decision, Skilling v. United States. In its opinion, the Court took the opportunity to try to scale back the definition of honest services fraud, something key members of the Court—notably Justice Scalia—had been eager to do for some time. The Court explicitly limited the statute to bribes and kickbacks and excluded other forms of honest services deprivation, notably undisclosed self-dealing.

But this was not the first time the Supreme Court had tried to curtail honest services fraud law; it had done so in 1986 in McNally v. United States. Shortly after McNally, however, Congress acted quickly to restore the scope of honest services fraud and enacted the current version of 18 U.S.C. § 1346. After Skilling, commentators and legislators alike began to call for Congress to once again undo the Supreme Court’s work and restore federal prosecutors’ ability to reach a broad range of corrupt conduct. Yet this time, two years after Skilling, Congress has failed to do anything. In this day and age, expanding the scope of the honest services statute appears not to be a priority.

This Article addresses whether the Supreme Court’s decision in Skilling, or even Congress’s subsequent failure to act, has any real effect on prosecutors’ efforts to fight public corruption. While the Court presumably sought to clarify the law and pare it down to its clear statutory meaning, it now appears that the state of the law is close to where it was in May 2010—somewhat vague. In response, courts, rather than insisting on strict definitions of “bribery” or “kickbacks,” have gone out of their way to shoehorn conduct into the new meaning of § 1346. Given the general willingness of trial and appellate courts to find almost any deprivation of honest services sufficient—with the emphasis on whether or not the deprivation was of actual honesty, not property—there appears to be little need to try to rewrite the statute. Courts have filled in where Congress has failed; they have expanded the law or added a good dose of common sense where necessary to ensure that those depriving the public of their honest services, just as the statute requires, face consequences for doing so.

Part I begins by briefly outlining the history of the honest services law up through 2010, when the Supreme Court issued its opinion in Skilling. Part II examines Skilling itself—the majority opinion, the dissent, and where the Court left unresolved questions. Part III analyzes sample district court cases (a few reviewed by the Courts of Appeals) that have dealt with recurring open questions, largely successfully. And finally, Part IV concludes with a few predictions and suggestions for the future, so as to keep the law in this area moving in the same direction—to make sure that public officials are on notice of what constitutes honest services fraud and, at the same time, make sure that the definition is not so narrow that clearly corrupt behavior is beyond the statute’s reach.

46 New Eng. L. Rev. On Remand 79 (2012)