Thursday, July 30, 2009
The defense filed a 57 page Brief in the Conrad Black (Boultbee and Kipnis) case pending in the U.S. Supreme Court. Cert was granted to examine two questions, one of which involves section 1346's honest services provision. (see here) At issue is whether the statute applies "to the conduct of a private individual whose alleged 'scheme to defraud' did not contemplate economic or other property harm to the private party to whom honest services were owed." As anticipated, Appellant's Brief references Justice Scalia's words from his dissent of a denial for certiorari in the case of Sorich v. United States - "nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct." A key focus of the petitioner-appellant is that economic harm is needed.
As stated in the Brief, "in enacting Section 1346, Congress did not make a federal crime out of any arguable failure to render 'honest services,' but sought to target such conduct only as part of a broadened understanding of 'scheme to defraud.' It did not remotely license federal prosecutors, as here, to pursue their own untethered understanding of 'honesty' apart from any conventional understanding of 'fraud.'”
Appellants also note the due process fair notice violation that occurs when you have a statute that "reaches any 'dishonest' conduct in the private sector..." The Rule of Lenity is mentioned, especially since interpreting the mail fraud statute can trigger a money laundering charge.
20 days following the oral argument in this case, the 7th circuit ruled with Hon. Posner authoring the opinion that affirmed the conviction. Irrespsective or whether one agrees or disagrees with the use of honest services fraud in the private context without economic harm, it is good see that more time is being spent examining this important question.
(esp)(w/ a hat tip to Peter Goldberger)