A Petition for Cert has been filed in the Supreme Court in the case of Brown v. U.S., coming from the 5th Circuit. It's the Brown from the Merrill Lynch- Enron case. Brown I was dismissed by the court holding that "the alleged conduct is not a federal crime under the honest services theory of fraud specifically." The problem was that the government decided to recycle the case without the 1346 allegation. A fascinating question presented is whether section 1343 is a separate offense from 1346 – and how does this play with double jeopardy. 1346 was created to define that a scheme to defraud could include an intangible right to honest services. But 1346 is a definition statute and has no additional elements. As stated in the Petition for Cert-
In these Circuits, a second trial of Brown on these wire fraud charges would violate double jeopardy because the government’s allegations of “honest services” and citation to § 1346 were superfluous – the government’s redactions changed nothing. Thus, the offense is the identical wire fraud, with the same elements, and there is no separate wire fraud for which Brown can be tried a second time for the same (non-criminal) conduct.
Petition – Download Brown FINAL CERT PETITION 1023
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