'Honest Services At Risk'

Author:Mr William Michael, Jr.
Profession:Dorsey & Whitney LLP

In 1987, with its decision in McNally v. United States, the Supreme Court limited the broad use of one of the federal prosecutors' main statutes when they decided that "[t]he mail fraud statute clearly protects property rights,...[it] does not refer to the intangible right of the citizenry to good government." That decision invalidated the Government's often used theory that a defendant who deprived the citizens of the intangible right to honest and impartial services has committed fraud. Congress responded shortly thereafter to vitiate this ruling with the passage of Title 18, United States Codes, Section 1346, which defines "scheme or artifice to defraud," as used in the mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343), to include "a scheme or artifice to defraud another of the intangible right of honest services."

Under section 1346, the Government may charge mail or wire fraud either under the theory that the defendant used the mails or wires to deprive another of physical property or money, or used the mails or wires to deprive another of the intangible right to honest services. Whereas, section 1346 defines "scheme or artifice to defraud," it provides no definition of "honest services" and thus courts have been left with the difficult task of determining the reach and application of the honest services doctrine. Since its inception in November 1988, section 1346 has long been criticized for its vagueness and resulting overbreadth and after years of disperate application is finally being addressed in a series of three cases currently before the Supreme Court. The Supreme Court now stands ready to potentially deal yet another fatal blow to the Government's broad use of the honest services theory.

The questions left unanswered by section 1346's "honest services" language have been noted by many critics, including Supreme Court Justice Antonin Scalia, who illustrated the overbreadth of the statute in the following passage:

If the "honest services" theory–broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers– 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; a mayor's attempt to use the prestige of his office to obtain a restaurant table without a reservation; a...

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