Monday, June 29, 2009
Earlier this term, the Supreme Court granted certiorari in the Conrad Black case, a case premised upon the honest services intangible rights doctrine of the mail fraud statute (see here). Now a second case has cert granted - Weyhrauch v. United States - that also presents a question regarding section 1346. The question presented is: "Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law." (see here). For the Petition for Certioriari, Brief in Opposition, and Petitioner's Reply, see Scotus Blog here.
Weyhrauch, a lawyer and former member of the Alaska House of Representatives was accused of mail fraud for his role with an oil field services company. The government proposed to introduce evidence that went to ethics violations and conflicts of interest in Weyhrauch's alleged conduct. The government argued "that the evidence should nonetheless be admitted because proof that a legislator knowingly concealed a conflict of interest may be used to support an honest services fraud conviction even if state law does not require disclosure of the conflict of interest." The district court granted the accused's motion, excluding the evidence. The government appealed to the Ninth Circuit, that after discussing the circuit split reversed stating that it "decline[d] to adopt the state law limiting principle." The court held that it could not "find any basis in the text of legislative history of section 1346 revealing that Congress intended to condition the meaning of 'honest services' on state law." The petitioner - defendant, is now asking the Supreme Court to review this ruling.
This case presents another opportunity for Justice Scalia to use his words from the denial of cert in the Sorich case, where he stated that the "28 words" in the statute had "been invoked to impose criminal penalties upon a staggeringly broad swath of behaviour, 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 in Sorich by stating that "it seems to me quite irresponsible to let the current chaos prevail." (see here)