Monday, September 18, 2006
The mail fraud statute was amended by Congress after the the case of United States v. McNally to add a new definition statute, section 1346, that permitted a prosecution that deprived one of the "intangible right to honest services." But what constitutes "honest services," and how extensive the statute will be, remains problematic to this day.
Most recently the Sixth Circuit issued an opinion in the case of United States v. Turner, holding that alleged election fraud was not encompassed within the "intangible right to honest services." The court also rejected using salaries as the "money of property" aspect of mail fraud if 1346 were not allowed as a basis for the prosecution.
The mail fraud statute is a statute with enormous breadth, and has duly been named in a dissenting opinion by former Chief Justice Burger, the "stopgap device." But as prosecutors continue to stretch the statute to new boundaries, the courts are becoming more vocal in saying that this "limitless" crime will have limits.
The decision can be found here - http://www.ca6.uscourts.gov/opinions.pdf/06a0332p-06.pdf