Here is the one-paragraph slip opinion.
(slw)
Tag: honest services
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Here is the slip opinion. More to come. The decision was 9-0 to vacate and remand for harmless error analysis re honest services jury instructions. Scalia (joined by Thomas) and Kennedy concur, and would hold Section 1346 unconstitutionally vague. Defendants properly preserved error on jury instructions.
(slw)
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The Supreme Court issued its decision in United States v. Stevens invalidating a statute "to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty." This is not a white collar crime case, but the decision provides interesting language that may be relevant for the forthcoming trilogy of cases pertaining to "honest services." (see here and here) Professor Doug Berman over at the Sentencing Law & Policy Blog (here and here) discusses the decision and asks about the effect of this case on the pending Black and Skilling cases. He notes key language from the Court's decision – "We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." A few other lines from the majority should also be noted –
- "The only thing standing between defendants who sell such depictions and five years in federal prison – other than the mercy of a prosecutor – is the statute's exceptions clause."
- "The government's assurance that it will apply section 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading."
- "We 'will not rewrite a …law to conform it to constitutional requirements,' … for doing so would constitute a 'serious invasion of the legislative domain' …and sharply diminish Congress's 'incentive to draft a narrowly tailored law in the first place.'"
- "To read section 48 as the Government desires requires rewriting, not just reinterpretation."
This decision sends a message that the Court is open to striking down statutes that are overbroad. Many contend that the honest services definition statute for mail fraud fits this bill. Some may claim that there is a difference in how one interprets overbreadth for purposes of the First Amendment (Stevens) versus overbreadth for purposes outside this context. But such a distinction should not be controlling. If we desire to put individuals on notice of what should be criminal then due process requires that the statute have clear language that is not subject to prosecutorial legislating.
One final point – Justice Alito is the sole dissenter in the Stevens decision. When it comes to the trilogy of cases on honest services perhaps he will be on the other side. The difference with Skilling is that Justice Alito's home-run question in the Skilling oral argument proved that there were no pre-McNally cases that presented a similar fact scenario (see here).
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The Vanderbilt Law Review En Banc has published an online Roundtable on Skilling v. United States. The Roundtable includes:
Nancy King, Introduction: Skilling v. United States
William H. Farmer, Presumed Prejudiced, but Fair?
Abbe David Lowell, Christopher D. Man & Paul M. Thompson, "Not Every Wrong is a Crime": The Legal and Practical Problems with the Federal "Honest-Services" Statute
Julie R. O'Sullivan, Honest-Services Fraud: A (Vague) Threat to Millions of Blissfully Unaware (and Non-Culpable) American Workers
Timothy P. O'Toole, The Honest-Services Surplus: Why There's No Need (or Place) for a Federal Law Prohibiting "Criminal-esque" Conduct in the Nature of Bribes and Kickbacks
Ellen S. Podgor, Intangible Rights-A Deja Vu
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I'll pass on the jury prejudice issue and leave it to crimprof to handle this one. But the honest services exchange was fascinating. You have several justices asking where to find this pre-McNally law. (see here). Do you need lawyers, do you have to carry around treatises - but then Justice Alito hits the homerun. He asks the important question of whether we would find this scenario in the pre-McNally cases. Mr. Dreeben says "not to my knowledge." A "logical extension" is what he offers. I call that – stretching.
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Addendum -See Lyle Denniston, Scotus Blog here ; Tom Kirkendall, Houston Clearthinkers here; Mary Flood, Houston Chronicle, Justices worried about fair trial for Skilling; Robert Barnes, Wash Post, Skilling case latest to test 'honest services'
Second Addendum – The more I keep reading, the more I keep thinking about the Court's words in the Carpenter case, where they found the "right to intangible property" covered under the mail fraud statute, but noted that the Wall Street Journal "was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute…" Clearly this was pre-1346, but it is telling.
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Today is Jeff Skilling's chance to convince the Supreme Court that either section 1346 (intangible rights to honest services) is vague or should only apply to bribery cases, or that his trial was tainted and that there should have been a change for venue. The Skilling case is one of three cases before the Court this term examining section 1346, the honest services fraud provision of the fraud statutes. One thing I continue to maintain is that the government can survive without section 1346 (see here). My preview for the Black and Weyrauch case are here, and much of this applies to this case. Unlike the past two cases, the Skilling decision is a frontal attack on the statute, although Skilling also has a fallback position as noted above.
The Briefs for the case can be found here. See also Scotus Blog here.
Below is a listing of prior posts that lead up to today's oral argument:
Skilling Files Petition for Cert
Skilling Asks for En Banc Hearing
What Others Are Saying About the Skilling Decision
Skilling – Commentary on the Decision
Skilling- Sentencing Reversal and Remand; Conviction Stands
Skilling Hearing – Sounds Like it Wasn't a Hot Bench
They're Expecting A Crowd for Skilling
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