September 4, 2011
Government Successful in Post-Skilling Case
U.S. v. Bryant is a third circuit decision where the court affirmed the convictions finding no defect in the jury instructions for honest services or bribery. The court found that the "government presented substantial evidence of a quid pro quo bribery scheme to defraud the citizens of New Jersey of Bryant's honest services, including circumstantial evidence of the requisite mens rea..." The court stated that the Skilling case did not "undermine the viability of the stream-of-benefits theory." And further is was stated that "[i]ndeed, Skilling did not eliminate from the definition of honest services fraud any particular type of bribery, but simply eliminated honest services fraud theories that go beyond bribery and kickbacks."
The court also looked at a claim of prosecutorial misconduct made by appellants that alleged that prosecutors improperly interfered with the defense's access to witnesses. The court noted that "[i]f the prosecution impermissibly interferes with the defense's access to a witness during a criminal trial, that conduct violates due process insofar as it undermines the fundamental fairness of the proceeding." In this case, the "District Court took measures to clarify" any "misunderstanding well before trial. In response to Appellants' motion to dismiss, the Court instructed the Government to send a letter to all subpoena recipients five months before the start of trial, stating that the witness had an 'absolute right to speak to anyone...about anything [they] know about any of the matters under investigation, including the fact that [they] were subpoenaed and ....testified before the grant jury."
Opinion - Download BryantGallagher Opinion
Addendum - See also Beldini - Download Beldini NPO
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A major concern of the Court in Skilling and Black was the vagueness of the "honest services fraud" statute. The Court's dubious solution to this problem was to narrow the statute's reach to its "historic" (sic - dating to the 1970s!) core of a scheme to defraud the citizens of a political jurisdiction of a public official's "honest services" by means of "bribery" and "kickbacks" (or a private entity of the honest services of an individual owing the victim a duty of loyalty). But where do we look for the definition and elements of "bribery" or "kickbacks" for this purpose? Justice Ginsburg's opinion gives this critical issue only cursory, almost casual treatment, citing two federal bribery statutes (section 201 and 666) that are often construed rather differently from one another. Likewise, as presented in Bryant (in light of prior 3d Cir case law), was the "stream of benefits" theory of bribery's essential "quid pro quo" requirement so clearly settled and recognized in the federal criminal law of bribery as of the time of 1346's enactment (late 1988) to be able to say that Congress intended to incorporate it? I do not see these questions satisfactorily posed, much less answered.
Posted by: Peter G | Sep 4, 2011 12:23:12 PM