Monday, May 18, 2009
The 7th Circuit "efficiently" ruled on Conrad Black's case 20 days after the oral argument. Despite the fact that the trial lasted four months, the court issued a 16 page opinion that included a sentence stating that "[t]he defendants raise some other points in their 161 pages of briefs, but none that has sufficient merit to require discussion." (see here).
But it looks like the Supreme Court intends to give Conrad Black more time and further consideration. The Court accepted certiorari on the following question, as reported on Scotus Blog here:
Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.
The acceptance of a section 1346 case may prove controversial. Recently, the Court denied cert in the Sorich case, but the denial included a strong dissent by Justice Scalia, who noted that the "28 words" in the statute had "been invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries." He stated that "[w]ithout some coherence limiting principle to define what 'the intangible right to honest services" is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct." Justice Scalia concludes his dissent by stating that "it seems to me quite irresponsible to let the current chaos prevail." (see here)
So the acceptance of cert in this case may resolve some of the issues raised in the Rybicki dissent. It may finally provide a clue as to whether section 1346 is constitutional or not. It may decide on whether this statute is vague. It may offer some insight of how the statute should be interpreted when a private fraud is at issue, and it may determine if an economic harm is needed. Most importantly, will this be another McNally decision that will again send a message to prosecutors that mail fraud should not be stretched too far.
(esp) (blogging from Washington, D.C.)