Sunday, February 28, 2010

Reining In Honest Services Fraud

Guest Blogger - Stephen Richer

Stephen Richer is the Director of Outreach at Washington Legal Foundation

"Show me the man, and I will show you the crime," said Lavrenti Beria, Stalin’s Chief of Police. 

Such is the sentiment that Noel J. Francisco of Jones Day evoked when describing the Honest Services Fraud Statute at a recent Washington Legal Foundation Media Nosh.

The Honest Services Fraud refers to the 28 word addition to the mail and wire fraud statute: "For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."

In so few words lies enormous prosecutorial power, and, as such, the statute has been the subject of two recent Supreme Court arguments: Weyhrauch v. United States and Black v. United States, and is the focus of the upcoming hearing of Skilling v. United States.

According to Mr. Francisco, such cases arise out of the government’s desire to respond to public outrage, and the Honest Services Fraud statute is a perfect tool for doing so. "This is a typical executive response of we've gotta’ find scalps," said Mr. Francisco.

Only later—many years after the fact—does the judiciary have the chance to review such governmental actions. Mr. Francisco predicts that after hearing this third case on the issue, the Supreme Court will "either strike down this intangible right to honest services or reign it in significantly."

To hear Mr. Francisco’s full remarks, as well as the remarks from The Honorable Dick Thornburgh, The Honorable Gregory G. Garre, and Patricia A. Millett, visit Washington Legal Foundation’s website for the archived version of the seminar.

Available here (the webcast must be accessed through Internet Explorer)


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