Post-Skilling Government Approach - Depends on the Case

In Skilling, the Court limited section 1346 to bribes and kickbacks.  But this decision has left courts with several unresolved issues.  The  Stinn case raises an important issue, and the briefs highlight an interesting position being taken by the government.

The defense files a 2255 motion in Stinn saying that Skilling applies and the conviction should be vacated.  - Download Omnibus Memo of Law ISO Stinn's Mtn to Vacate  They note that "[i]t is immaterial that the government and the trial court did not use the phrase 'honest services' in the indictment or the jury instructions. The government argued the same invalid theory as it did in Skilling throughout the trial and relied on that theory to convince the jury to convict Stinn."

The government argues that Skilling does not apply because they did not file the case under 1346. Download Gov's Memo in Opp to D's Mtn to Vacate Convictions & Grant Bail They note "the Supreme Court's holding in Skilling is irrelevant to the defendant's case, as he was not prosecuted under an honest services theory of fraud."

The defense replies, however, with several arguments including - isn't this the exact opposite position the government took in the Redzic case. Download REPLY TO GOVT'S OPP TO MTN TO VACATE  Redzic, an unusual case, had the court finding that the "money or property" portion of the case was problematic and could not stand.  But even though the defendant was not charged under 1346, the court went on to uphold the conviction saying that 1346 did not "create a separate substantive offense, it merely defines a term contained in sections 1341 and 1343."  The court held it was not necessary to cite 1346 in the charging instrument.  

Redzic raised issues of whether the accused had truly been advised under due process of the charges against the defendant since the government was using an uncharged basis for asking that the conviction be upheld.  But now the government in Stinn is saying that it makes a difference whether the government charges a case under 1346. Is the government taking the opposite position in these two cases (Redzic and Stinn), and is this problematic?

(esp)