The United States Supreme Court in Skilling v. United States construed the honest services branch of the federal mail and wire fraud statutes to reach no more than cases involving bribery or kickbacks. The mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, impose criminal penalties for the use of mail or interstate wire communications to deprive another of money or property through a "scheme or artifice to defraud." This report discusses wire and mail fraud and examines relevant court cases.
The United States Supreme Court in Skilling v. United States construed the honest services branch of the federal mail and wire fraud statutes to reach no more than cases involving bribery or kickbacks. The mail and wire fraud statutes, 18 U.S.C. 1341 and 1343, impose criminal penalties for the use of mail or interstate wire communications to deprive another of money or property through a "scheme or artifice to defraud." In its 1987 McNally decision, the Court had held that while the fraud statutes reached schemes to deprive another of property rights, they did not cover "the intangible right of the citizenry to good government." Congress responded almost immediately by enacting the "honest services" statute, 18 U.S.C. 1346, which declares that phrase "scheme or artifice to defraud" in the mail and wire statutes also encompasses depriving "another of the intangible right of honest services." In its 2009 term, the Court was presented with three honest services cases--Skilling, Black and Weyhrauch. Each offered the Court a slightly different prerequisite for an honest services conviction for Weyhrauch, a public official, it was an underlying state law violation; for Black, in the private sector, it was foreseeable harm; for Skilling, an ...
The United States Supreme Court's recent decision in Skilling v. United States is only the latest in a series of blows that the Court has dealt to the intangible rights theory of mail fraud (also known as honest services fraud). In Skilling, the Court considered the constitutionality of the so-called honest services statute, which criminalizes “scheme[s] or artifice[s][designed] to deprive another of the intangible right of honest services,” and narrowed its scope considerably by limiting the application of the statute to schemes to defraud involving bribes or kickbacks. The Court rejected the notion that the statute applies to undisclosed self-dealing by a public official or private employee and called on Congress to “speak more clearly” if it desired the statute “to go further.” To address criminal conduct that would no longer be penalized following the Court's drastic narrowing of the honest services statute, this Article provides recommendations concerning what the new honest services statute, which Congress would enact to replace the current, eviscerated statute, should look like. The considerations advanced in the Article aim to ensure that the new statute avoids potential federalism concerns, as well as the charges of vagueness that plagued the previous iterations of the honest services statute. Additionally, they provide a means of punishing truly criminal conduct that would otherwise fall outside the scope of the honest services statute (as it currently stands), the mail and wire fraud statutes, and 18 U.S.C. § 666. The Article strives to provide an outline of what the new honest services statute, which Congress would enact to replace the current, eviscerated statute, should look like. In doing so, it first traces the development of the intangible rights theory from its inception until present day. Then, it analyzes the Court's decision in Skilling. In light of Skilling, the Article examines the potential alternative means through which the government can pursue criminal conduct relating to the denial of honest services. Finally, the Article evaluates the cases that the new honest services fraud statute should address, provides recommendations for reform of the statute, and applies these recommendations to a recently proposed statute - the Honest Services Restoration Act.
