Monday, May 18, 2009

Commentary on Cert Grant in Black Case

The 7th Circuit "efficiently" ruled on Conrad Black's case 20 days after the oral argument.  Despite the fact that the trial lasted four months, the court issued a 16 page opinion that included a sentence stating that "[t]he defendants raise some other points in their 161 pages of briefs, but none that has sufficient merit to require discussion."   (see here). 

But it looks like the Supreme Court intends to give Conrad Black more time and further consideration. The Court accepted certiorari on the following question, as reported on Scotus Blog here:

Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

The acceptance of a section 1346 case may prove controversial.   Recently, the Court denied cert in the Sorich  case, but the denial included a strong dissent by Justice Scalia, who noted that the "28 words" in the statute had "been invoked to impose criminal penalties upon a staggeringly broad swath of behavior, 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 by stating that "it seems to me quite irresponsible to let the current chaos prevail." (see here)

So the acceptance of cert in this case may resolve some of the issues raised in the Rybicki dissent. It may finally provide a clue as to whether section 1346 is constitutional or not.  It may decide on whether this statute is vague.  It may offer some insight of how the statute should be interpreted when a private fraud is at issue, and it may determine if an economic harm is needed.   Most importantly, will this be another McNally decision that will again send a message to prosecutors that mail fraud should not be stretched too far.

(esp) (blogging from Washington, D.C.)

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Let's hope the Court passes upon the constitutionality of the statute, but given the narrowness of the question and the tradition of judicial restraint in passing on questions of constitutionality, it probably won't. Unless Scalia wins over his colleagues. Scalia clearly believes this statute violates Due Process because it is void for vagueness. In the very least, it seems absurd to pass only on the question of private conduct because it only lets dangle confusion in the public sphere. The Court should seize the opportunity to examine the law's constitutionality; it should not wait until it's forced to confront a question of constitutional law. Furthermore, Congress can remedy the situation; it merely needs to clarify the nature of the illegal conduct banned by 1346 so that defendants have adequate notice that their conduct is proscribed. Hopefully, Scalia School will be in session.

Posted by: LEC | May 18, 2009 9:09:11 PM

There are plenty of items - on the governments plate of duties - that are well defined and have received little or no introspec. The Feds need not create an additional plateau of endeavors - Soon enough there will be a whole swarm of litigation issues on the currect rise of Ponzi's.
Handle what is on your plate - until it is clean - before you look for the new/better Roast!

Posted by: Laser Haas | May 19, 2009 10:23:39 AM

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