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  • The Open-Ended Nature of "Honest Services" Fraud

    (Commentary by Heritage’s Brian Walsh)

    The Supreme Court yesterday decided not to consider an important case, Sorich v. U.S., on the meaning and scope of an exceedingly broad federal statute that has been used to prosecute a breathtaking range of conduct. Associate Justice Antonin Scalia again broke with the strict law-and-order stereotype often applied to conservative jurists by penning a trenchant dissent to the Court’s decision not to review the case. Scalia’s dissent also helps illustrate the dire need for federal criminal-law reform.

    Two decades ago, the Court overturned judicial law-making by the lower federal courts, which had fabricated an extension to the already broad federal mail and wire fraud statutes. Under this judge-made extension, public officials at any level of government could be convicted of federal mail or wire fraud if they deprived their constituents of the “intangible right” to their government officials’ “honest services.”

    The law was an open-ended invitation to federal prosecutors to bring charges against any official they considered dishonest. It failed to provide clear warning and guidance as to what conduct is and what conduct is not criminal under the statutes. Any such criminal law should be held invalid.

    Even though the Court years ago overturned the lower federal courts’ “honest services” innovation, Members of Congress love to campaign as being “tough on crime.” Many apparently think that nothing is better to include in a stump speech than being able to say they voted to “end public corruption.” Congress thus promptly passed an “honest services” statute that reinstated this vague, open-ended law.

    Both Scalia’s dissent and a recent Wall Street Journal report have pointed out that federal prosecutors have not limited their application of the “honest services” statute to allegedly corrupt government officials. Students who “schemed with their professors to turn in plagiarized work” have been prosecuted as have college coaches who violated the rules of the NCAA, a private association, and thus allegedly deprived their schools of the “intangible right” to their “honest services.”

    Even without the “honest services” branch, the federal mail and wire fraud statutes are so broad that, as Heritage pointed out in a recent letter to Congress co-authored with the National Association of Criminal Defense Lawyers, law professors have called them “a charter of authority for courts to decide, retroactively, what forms of unfair or questionable conduct in commercial, public and even private life should be deemed criminal.”

    The Court should not have rejected this case. How many Americans conduct themselves with perfect honesty in all professional situations at all times? Dishonesty is always wrongful, but the solution is not to give government a blank check to punish dishonesty criminally whenever prosecutors deems it to be worthy of prison time.

    When the primary thing standing between Americans and prison time is the good graces of federal prosecutors, we no longer have the benefit of the rule of law. Our freedoms are subject to the whims of men.

    Posted in Legal [slideshow_deploy]

    9 Responses to The Open-Ended Nature of "Honest Services" Fraud

    1. Dr. Ralph Mora, Fort says:

      I don't understand the objection here. It is not the prosecutor that convicts a defendant; it is the jury. If a jury of peers agrees that "honest service" is being denied, it appears that a contract is being breached. As you consider the statute too broad in that it is being used in commercial, public and private venues, it might be more helpful if you provide an alternative. Otherwise, it is too easy to passivley complain that it is unfair. My understanding is that if someone has not provided "honest service" in whichever venue, that party should have some consequence for their action or inaction.

    2. Spiritof76, New Hamp says:

      So, When do we start prosecuting the judges that make laws from the bench which would not be in conformity with "honest service" provision? I would like to see it extended so that any citizen can bring such charges against the judges, prosecutors, Congressmen and all the other government cronies. The current status of the country is largely due to the US Congress, judges and prosecutors and must be punishable over and beyond the election cycle.

    3. Denny, Wisconsin says:

      I have the perfect application of this law as practiced by the federal prosecutors. We need one to investigate the current President. Lying about transparency in "cramming down" the stimulus bill unread, though he promised time to review it. Corruption during his years in Illinois. His illegal foreign campaign contributions. His very eligibility to be President, indeed, a citizen at all, let alone "natural-born". His likely non-registration for Selective Service. Only two problems present themselves for this prosecution. 1. Who has the guts and the ability to sue? 2. Of the many crimes, what would they start with first?

    4. Larry Brownie, Calif says:

      Remember the fired US Attorneys under Bush. Remember Rove using DOJ to go after Democrats? Honest Services is the type of statute you use to do witch hunts.

    5. Mike, Tampa Florida says:

      In the Middle District of Florida we have a prosecutor who lies to the jury and convicts an innocent man. See United States v. Thomas Spellissy, et al. In this case the prosecutor used the honest service theory because he had no evidence, he lied to the jury to gain a false conviction. You can read all about this case at http://www.fight4spellissy.com. This case has its second oral argument in Sept 09 at the 11th Circuit. How can someone be convicted of conspiring to defaud someone of his honest services when he is not in a decision making position?

    6. Luis Kissimmee says:

      If a prosecutor lies and misleads the jury; is the jury really convicting an individual base on the application of the law?

      I was charged with this statue. The first trial ended in a mistrial, the Jury Forman approached me at the end of the trial and gave me a thumps up. I find out later that the jury though I was being setup. That’s because when my former supervisor took the stand he was aggressive and his words were “I wanted Luis Out of here”.

      The second trial was a disaster of lies. It all started when I filed a discrimination suite against my employer in Nov 2005. They settled and two month later I get subpoenas for a grand jury charging me with violation of the anti-kickback act. After this was dropped by one AUSA, my employer manages to get another agency involved and the honest service fraud statue was used. In my case not only were my first amendment rights violated but for some reason the key witness from the first trial changed. I thought I was in a fire pit, I read over 300 emails of hate and my heart broke to see that after all the hard work and money that was taking from me, it was all an internal conspiracy to get rid of me. One emails stand out the most. Destroy Luis!!!!

      Even after giving testimony and evidence that I was not working with the employer at the time because I was in litigation, I still needed to let them know that I was working with another company. The worst part is that the president the Other Company lied, what a shame and I have no clue why he would do that or what drove him to not tell the truth? I am on appeal now and writing letter to several news outlets.

      I’ am ready to take a polygraph if needed. This statue need to be seriously clean up for the private sector, it’s really dangerous when corp. internal policy can be used against anyone and let’s not call it retaliation call it Honest Service Fraud.

      I must agree that there may be some issues with it being applied in the private sector but a new beginning or cleansing of the DOJ would help as well. What happen to honest discretion from prosecution? I feel for Thomas Spellissy, as a veteran myself I found out that hate over seats honest justices.

    7. Mike from Tampa, FL says:

      The United States v. Thomas Spellissy oral argument is set on the 11th Circuit calendar for Sept 15, 2009 in Jacksonville. Also, the prosecutor in this case, AUSA Robert E. O'Neill is under investigation by the Florida Bar and the Department of Justice OPR.

    8. Luis Kissimmee says:

      Mike great news been keeping up with Tom, I plan on being at the hearing. check out http://www.honestservicefraud.com

    9. Dunn Kingston, NY says:

      It seams like a good law to use when fighting corruption, however, the sentencing should be relative to the amount of official or financial responsability the person was managing dishonestly. Public servants who commit honest services fraud should be judged based on how much their action or innaction directly damaged individuals or society in general.

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