There's an article in Canadian Business that had completely slipped my attention: several of the high profile white collar convictions have depended on a modification of the concept of mail fraud.
The dockets at the Supreme Court are:
PATRICK SLATTERY v. UNITED STATES:
Quote:
| But now, Black and Skilling — both serving time in federal prisons — have something very much in common. They’re fighting shoulder-to-shoulder against a peculiar American legal concept called “honest services” that helped put them behind bars. Black’s representatives are to appear before the U.S. Supreme Court in Washington, D.C., in December to argue his convictions should be overturned. Skilling has already filed a brief in that case, and in October got word the Supreme Court will hear his own challenge. If either man succeeds, it could throw open the gates of U.S. prisons, releasing a rogue’s gallery of white-collar convicts brought down by honest services, from disgraced lobbyist Jack Abramoff to former Illinois governor George Ryan. Two great themes, trust and betrayal, underpin the honest-services theory. Broadly, it holds that government officials and corporate employees, including executives, must act in the best interests of their constituents or employers. Should such individuals abuse their positions for personal gain, they can be found guilty of fraud. The idea is that fraud isn’t simply about money; victims can be deprived of something intangible, namely their right to the “honest services” of executives and public servants. Thus, a Philadelphia treasurer who accepted bribes from a lawyer seeking business from the city was found guilty of honest-services fraud, even though she never filched a single dollar from taxpayers. A former attorney for West Virginia’s lottery commission, who bought stock of a gambling company he knew would soon receive a lucrative state contract, became ensnared by the same concept. It has even been applied to basketball coaches who helped players cheat on correspondence exams to obtain university credits. To many, the idea of honest services seems intuitively just. Yet critics claim it’s so nebulous that it criminalizes virtually any act of dishonesty, no matter how banal. Frank Razzano, a partner with Pepper Hamilton LLP in Washington, D.C., and a former prosecutor, is among those who’d like to see it repealed. “It’s truly a national disgrace that we would indict people in this country and send them to jail for violating a statute which has no definition,” he says, “and which the courts themselves can’t define." |
- Bruce Weyhrauch, Petitioner v. United States
- Jeffrey K. Skilling, Petitioner v. United States
- Conrad M. Black, John A. Boultbee, and Mark S. Kipnis, Petitioners v. United States
- Conrad M. Black, John A. Boultbee, and Mark S. Kipnis, Applicants v. United States
PATRICK SLATTERY v. UNITED STATES:
Quote:
| In the background of the interpretive venture remain the two concerns voiced by this Court in McNally. First, the prospect of federal prosecutors’ (or federal courts’) creating ethics codes and setting disclosure requirements for local and state officials. Is it the role of the Federal Government to define the fiduciary duties that a town alderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules against certain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide “honest services”—with the details to be worked out case-by-case. See generally Brown, Should Federalism Shield Corruption?—Mail Fraud, State Law and Post-LopezAnalysis, 82 Cornell L. Rev. 225 (1997). Second and relatedly, this Court has long recognized the “basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City of Columbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But “the notion of a common-law crime is utterly anathema today,” Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). |
