Previewing the Coming Term (Part 11): Black v. United States

[This is the eleventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.}

Case: Black v. United .States
Docket No.: 08-876
Oral Argument Date: not yet assigned

Issues:  (1) Whether 18 U.S.C. § 1346 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; (2) Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.

Factual and Procedural History:  The U.S. Supreme Court held, in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services." Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.

Summary of Petitioners’ Argument:  Petitioners argue the Supreme Court’s holding in McNally is dispositive in this case.  Moreover, according to petitioners, § 1346, as drafted and adopted by Congress, failed to clearly address the concerns of the Court by enjoining the deprivation of the “intangible right of honest services.”  Petitioners argue the lower courts have construed this language as a “direction to revive the body of case law that antedated McNally.”  Ultimately, according to petitioners, interpreting § 1346 based on pre-McNally case law would be in error because it would involve, as applied in this case, purely private conduct. 

In the alternative, “[w]hatever the precise scope of Section 1346,” petitioners argue it is “clear” their convictions “must be reversed because the district court refused to instruct the jury on the one requirement that is apparent from the text and history of the statute.”  According to petitioners, the language of § 1346 precludes prosecutors from prosecuting dishonest conduct outside the common understanding of fraud.  Petitioners argue the Seventh Circuit was incorrect when it found that the jury might have convicted petitioners anyway if properly instructed.  Accordingly, petitioners request the Court to reverse the obstruction of justice and fraud convictions.

Summary of Respondent's Argument: Merits brief not yet filed.

Brief for Petitioner Conrad M. Black, John A. Boultbee, and Mark S. Kipnis