Wednesday, May 2, 2007
Co-blogger Peter Henning noted here the acquittal during oral argument of an individual prosecuted under the mail fraud statute. The accused was convicted for a deprivation of honest services despite a fact scenario that had this individual selecting the low bidder for a state contract. The problem here is not the jury, as they appropriately followed the law. The problem is the prosecution's use of this law, section 1346 - the "intangible rights doctrine" of the mail fraud statute, and the fact that the law allows for this type of application. The decision now released leads one wondering if there is no crime in this jurisdiction that tax dollars could be spent on this type of prosecution. One also has to wonder whether this case emphasizes the need to reign in section 1346's "honest services" provision to curtail prosecutorial discretion. Judge Easterbrook, authoring the Seventh Circuit opinion in this case, has a superb analogy in his decision. He states:
"Once again that approach has the potential to turn violations of state rules into federal crimes. When the Supreme Court reverses a court of appeals, it is apt to say (as the prosecutor says about Thompson) that public officials have failed to implement the law correctly. Does it follow that judges who are reversed have deprived the United States of their honest services and thus committed mail fraud?"