As the rest of the nation ponders the implications of the USSC decision narrowing “honest services” to cases involving alleged bribes and kick-backs, our friends in Louisiana stand ready to open what agriculture giant “ConAgra thinks… is the first factory dedicated to sweet potatoes in North America”.
In Skilling v. United States, Justice Ginsburg’s majority opinion acknowledged that in prior case law there was “considerable disarray” about what it means to deprive omeone of honest services, at least at the outer boundaries of the doctrine. But six justices agreed that at its core, the doctrine clearly prohibits schemes involving bribes and kickbacks. The prototypical honest-services fraud case, according to the Court, involves a public official who accepts a bribe or kickback from a third party in exchange for awarding a contract; even if the government incurs no tangible loss, it has been deprived of the official’s honest services…
The implications of the Court’s holding that the honest-services theory of mail fraud encompasses only bribery and kickbacks are significant, to say the least. The government should expect an avalanche of legal challenges on both direct and collateral review. Any defendant whose conviction possibly rests on an honest-services theory, be it for mail fraud, wire fraud, conspiracy, or other crimes, has fertile ground for obtaining relief. Even defendants whose conduct arguably involved bribery or self-dealing can argue that a jury instruction that was not so limited was prejudicial. Moreover, as the Skilling and Black cases suggest, defendants convicted on multiple counts, some of which were not based on honest-services fraud, have a shot at getting reversal on all counts. The theory is that the honest-services instruction could have had a prejudicial spillover effect on the other counts. While the Court in Skilling clarified that a conviction that might have been based on a flawed honest-services theory is not subject to automatic reversal on direct review, the harmless-error standard the government faces, especially on direct review, will still be difficult for it to meet.
According to the Daily Journal’s Patsy Brumfield, Zach Scruggs may be among those with a case in the expected “avalanche of legal challenges”:
Zach Scruggs’ attorneys are looking at Thursday’s U.S. Supreme Court decision about “honest services” and how it could affect his future.
Scruggs, 36, was a young Oxford lawyer in November 2007 when he, his famous litigator father, Dickie Scruggs, and two others were indicted on federal charges that they conspired to bribe Circuit Judge Henry L. Lackey of Calhoun City.
Despite repeated assertions of innocence, he pleaded guilty in March 2008 to a lesser charge – that he knew a crime was being committed but failed to report it.
His plea connects with the Supreme Court decision because, basically, he pleaded guilty to failure to report the loss of honest services…
Brumfield’s blogging son, attorney Will Bardwell, on the other hand, opined, “the U.S. Supreme Court’s long-awaited decision…does not appear to offer a great deal of help to Paul Minor” in his post SCOTUS Decision in Skilling is a Minor Inconvenience:
After a lengthy discussion of the history of the intangible-rights doctrine in the United States (beginning on page 34 of the majority opinion), the Court held that the honest-services fraud statute at issue is not unconstitutionally broad and that its reach is limited to “bribery and kickback schemes.” While that may one day mean victory for Jeffrey Skilling, and while it’s sure to piss off a lot of prosecutors, it doesn’t appear to help Minor very much since that’s more or less the allegation made against him by the Government.
It also seems to me that Minor’s argument to the Court for granting certiorari — namely, that the recent Citizens United decision implies a First Amendment protection of the activities alleged by the Government to have occurred — is a lot less tenable today in light of the ground reserved by the Court for the honest-services statute.
Bardwell concluded, “We’ll find out later this year, I guess” – that and a lot more would be my guess, particularly with all the new capacity Louisiana will have to process “sweet potatoes”.