1 (Slip Opin i o n) OCTOBER T ERM, 20 09 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES

Sy llabu s 

### SKILLING v . UNITE D STAT ES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 08–1 39 4. Ar g u ed M a rc h1, 2010—Dec i ded Ju n e2 4 , 2010 Fou n d ed in1 985, En r o nCor p or ationg r ew fr om it s h e adqu ar ter s i n

Hous ton, Tex a s , into the s e venth hi ghes t-reven u e-gr os s i ng compa n y in America. P e titionerJeffr ey Skilling, a l o ngtime Enron officer, was Enron’s chief executive off i cer fr om Febr u a r yun til Au g u st 200 1, when he res i g n ed. Les s than four months la ter, Enron cra s h ed into bankr uptc y , and its s t oc k pl ummeted invalue. Af ter aninvestigat ion
unco v ered a n elab o ra t econspira cy t oprop up Enro n’s stock prices by overstating the company’sfinanc ial well-being, the Government prosecuted dozens of Enron empl oyees who participated in the
sc heme. In ti me, the Gov e r n ment wor k ed its wayup the c h ain of command, indicting Skilling and two other top Enron executives. These three defendants, the indictme ntcha r ged, en ga ged in as c hem e to deceive inves t ors ab o ut Enron ’ s true fina ncia l performa nce b yma nipulating its publicly repo rted financial results and making false and mislea ding statement s
. Count 1 of the indictment charged Skill

ing with, int er alia, cons pira cy t ocom m i t “h ones t-s e rvices ” wire fr au d, 18 U. S. C. §§37 1 , 1 343, 13 46, bydepr iv in gEn r o nan d it s shareholders of the intangi b le righ t of hi s honest services. Skil ling was also c h ar g e d withov er 25 su bs tan t iv e c o u n t s of secu r i ties fr au d, wire fraud, m a king false re presenta tions to Enr o n’ s auditor s , and in

sidertr adin g
.

In Novem b er 2 0 0 4 , S k illing m o ved for ac h a n ge of ve nu e, cont end

ingthat hostil itytowar dhim in Houston, c o upled with ex tensiv e pr e tria l pub licity, ha d pois oned potentia l j u rors
. He s u b m itted hundreds of news report s det a iling En ron’s do wnfall, as well as affidavits fro m ex per t s he eng a g e d por t r a y i ngc o mmunityatti tudes inHouston in compa r is on to other potentia l venues

. T h e Dis t rict Court denied the motion, c o nc l u dingthat pr et r i al publicity did not warra nt a presump

-2 SKILLING v. UNITED STAT ES Sy llabu s tionth atSk ill in gwou l d be u n able to obt a in afair tria l in Houston. Despite incidents of intemperate c o mmentar y , the c o urt observ ed, media coverage, on the who l e, had been o bjective and u n emotional,
a n d t h e fa ct s of t h e ca s ewere neit her hein ous nor s e ns a t iona l. More

over, the co urtasserted, effective voir dire would detect jurorbias

.

In the months befor ethe tr i a l, the court asked the parti e s for ques

tions it might use to screen pros pect ive j u rors
. Rej e ct ing t h e Gov

ernment’s spa r er inquir ies in favor of S k illing’s more probing and specific questi ons, the court co nverted Skilling’s subm ission, with slight modific a tions, into a77- qu estion , 14-pag edoc u men t

. Th e questionnaire asked prospe ctive juro rs ab o utt h eir s o urces of news
a n d expos u re t o Enron-rel a t e d pu b licit y , b e liefs concerning Enro n and what caused it s collap s e, opin ions rega rding t h e d e fenda n t s a n d their pos s ib l e guilt orinno cence , and r e l a tionship s to the c o mpany an d to an y o n eaffec t ed byits de mise. The c o ur t then mailed the questionnaire to 400 prospe ctive ju rors a n d received re s p ons e s from
n e ar lyall of t h em. It g r an t e d h a r d sh ip e x emption s to abou t 90 in di

viduals, and t h e parties, wit hth e court ’ s a pprova l , furt h e r winnowed th e pool byexc u sin gan oth e r119 forc a u s e, h a r d sh ip, or ph y s ic al dis

abil i ty

. Th e par t ies ag r eed to ex c l ude, in particular, e v ery p r ospec tiv ejur o rwho said tha ta pr eex isti ng opinion ab o ut Enron or thede

fendants would prevent her from being impartial.

In December 200 5, three weeks before th e trial date, o n e of Skill

ing’s co-defendants, Richard Caus ey, ple a ded guilty. Skil ling re

newed his cha n ge-of-ve nue motion, arguing that the juror question

n a ir es r e v e aled perv asiv e bi as an d th a tn e ws ac c o u n t s of Cau s ey ’ s guilt y pleafurt her t a int e d the j u ry pool. The court again declined to
mov ethe tr ial , r u lingthat t h e questionna ir es and voir direpro v ided
s a fegua r ds a d eq ua t e t o ensure a nim pa rt ia l j u ry. The courta l s o de

nied Skilling’s request for attorney-led voir dire on theground that pot e nt ia l j u rors were m o re fort hcom ing w i t hj u dges t h an wit hla w y e r s
. But the c o ur t pr omised to gi v e c o unsel an opportunityto ask follow-up questions, agreed that ve nire members should be examine d individually about pretrialpublic ity, and allot t ed the defendants jointlytwo ex tr a per e mptor yc h alleng es. V o i r d i re beg a ninJan u a r y200 6. Af terq u estion in gth e v e n i r e as a group, the co urt examinedprospect ive j u rors individ u ally, asking
ea ch ab o uthe r expos u re t o Enron-rela t e d news , t h eco nt entof a n y stories that stood out in he r mi nd, and any questionnaire answers th at r a ised a r e d flagsig n ali n gpossible bi as. Th e c o u r t th enper m it

ted each side to pose follow

- up questions and ruled onthe part ies’ challenges for cause. Ul tim a tely, the court qualifie d 3 8prospectiv e j u rors , anum b e r s u fficient , a llowing for perem p t o ry cha llenges , t o empan e l 1 2 ju r o r s an d 4 alt e r n ates. Afte ra 4-mon t ht r ial, th e ju r y3 Cite as: 56 1 U

. S. ____ (2010) Sy llabu s found Skilling guilty of 1 9 co unts, in cluding the honest-s ervices-fraud
cons pira cy cha r ge, a n d notgu ilt y of 9 ins i der-t r a d ing co u n t s
.

On appeal, Sk illing raised t w o argu ments relevant here

. First, he contended tha tpretrial publ icity and com m unity prejudice preve n ted him from obta ining a fair trial. Se cond, he alleged that the jury im

properly convicted him of co nspira cy t ocom m i t hones t -services wire fr aud. As to the for m er , the Fifth Circuit initi a lly det e rmined tha t t h e volum ea n d nega t ive t o ne of m e diacovera ge gene ra t e d b yE n ron’s collapse created a presumption of juro r prejudice. Stati n g, howe ver, that the pr esumption is r e b u tt able, the court examined the voir dire, found it “pr o p e rand thor ough ,” andheld that the Distr i c tCour t had empaneled animpartial jury. T h e Court of Appeals also rejected Skilling’s clai m that hi s conduct did not indicate any conspiracy to
c o mmit honest -serv i c e s fr aud. It did not address Skil lin g’s argument tha tthe hone s t -s ervices s t atute, if not int e rpreted to ex clude his a c tions, should be invalidated asuncons t itutiona lly va gue. Held : 1. Pretrial publicity and communi ty prejudice did not pre v ent Skill

ing from obtaining a fair tri a l. He did not establish thata presump tion of juro r p r ejudice arose or that ac tu al bia s in fec t ed th e ju ryth at tr ied h i m. Pp. 11–3 4. (a) The District Court did n o t err in denying Skilling’s request s fora v e n u e tr a n sfer

. Pp. 11–19. (1) Although th e Sixth Amendm ent and Art. III, §2, cl. 3, pro

vide for crim i na l t r ia ls in the S t a t e a n d dis t rictwhere t h e crim ewas committed, these place-of-tr i al pres criptio ns do not imp e de transfer of a proceeding to a different distri ct if extraordinary local prejudice will prevent a fair tr ial. Pp. 11– 12. (2) The found ation precedent for the presumption of p r ejudice from which the Fifth Circuit ’s analysi s proceeded is Rideauv. Louisi

ana , 373 U. S. 723. Wil b er tRideaur o bbe d a sm all- townban k, kid

naped three b a nk employee s, and k ille d o n e of them. P o lice interro

gated Ri deau in jail wi thout counsel present and obtainedhi s confession, which, without his know ledge , was filmed and televised thr ee times to lar g e loc a l a u dienc e s shortlybefor etr ia l. Afterthe Louis i a n atrial court denied Ridea u ’s cha n ge-of-ven ue motion, he wa s c o nv ic ted, and the c o nv ic tion was upheld on direct appeal. This Court reve rsed. “[T]o the t e ns of thousands of people who saw and hear d it,” the Cour t ex plained, the inter r o g a tion “in a v e r yr e al sense
was Rideau’s trial—a twhich he pleaded guilty.” Id., at 72 6

. “[W]ithout paus ing to exa m ine .

. . the voi rdire, ” the Cour t held that the “kangaroo court proceedi n gs” tra iling t h e televised confession vio

lated due process. Id., at 7 2 6–7 27. Th e C o u r t followed Rideau in two ot her ca s e s in whic h m e diacovera ge m a nifes t ly t a int e d crim i na l4 SKILLING v. UNITED STAT ES Sy llabu s prosecutions. However, it later ex plainedthat those de cisions “can

not be made t ostand forthe pr opos it ion t h a tj u ror exp o s u re t o
. . . news accounts of the crime .

. . al one presumptively deprives the de

fendant of due process.” Murphyv. Florida , 421 U. S. 7 94, 7 98– 79 9. Thus, prominence does not necessar ily produce prejudi c e, and juro r impartialitydoes not require ignorance

. See, e.g., I r vinv. Dowd , 3 66 U. S. 717, 722

. A pr esu m ptionof pr eju d ice atten d s on lyth e ex tr eme c a se. Pp. 12–1 6. (3) Important differences se parate Skillin g’s prosecution from those in which the Court has presum ed juror p r ej udice

. Firs t , t h e Cour t has emphasized the s i ze and c h ar acter i stic s of the c o mmunity in which the crime occurred. In cont r a st t othe sm all- to wn settingin Rideau , fo r ex a m ple, t h e record s h ows that Houston is t h e Nation’ s four th most populous c i ty

. Giv e n th elarge, diverse poolof residents eligible for ju ry duty, any suggest ion that 1 2 imp a rti a l individual s could not b eempa neled in Hous ton is hard to s u sta i n. S e cond, a l

though ne ws stories ab out S k illing were not kind, they contained no blat an tlypr eju d ic ial in formationsu c has Rideau ’ s dr amatic al ly staged ad mission of guilt. Third, unlike Rideaua n d other ca s e s in which trial swiftly followed a widelyreport ed crim e , over four yea r s elapsed betwe e n Enron’s bankruptcy and Skilling’s tria l

. Although report ers cove red Enron- rel a t e d news t h roughoutt h is period, t h e decibel level o f media atten t ion di mini shed somewhat in the y e ar s following Enron’s collapse. Finally , and of prime significance, Skill

ing’s j u r ya c q u itted him of nine ins i der- tra d ing count s
. S i mila rly, earlier instituted Enron-rel a ted pr osecutions yielded no overwhelm

ing vict or y fo r t h e Gove rn m e nt

. Itwould b eodd for a na ppella t e court to pres ume prej udice in aca s einwhich j u ro rs ’a c tions run c o u n t er to th at pr esu m ption

. Pp. 16–18. (4) The Fifth Circuit presumedjuror prejudice based primaril y on the mag n it ude and neg a t iv etone of th e medi a a tten t ion dir e c t ed at Enron. But “pretrial p u blicit y—even pervasive, adverse public

ity—does notinevitably le ad to an unfair trial.” N e br as ka Pr e ss Ass n
. v. St uart , 427 U. S. 53 9, 554. Her e , n e ws stor ies ab ou t En r o n did not present the kind of vivid, unfo r gettab l e informa t ion the Cour t has recognized as particula r ly likel y to p r oduce prejudice, and Hous

ton’s size and diversity dilut e d th e media’s impact. Nor did Enron’s sheer number of victims tri gger a pr esum ption. Although the wide

s p rea dcom m unit yim pa ctneces s i t a t e d ca reful ident i fica t i on a n d in

spection of prospective jurors’ co nnections to Enro n, the extensive screening que s tionnaire andfollow-up voir dire yielded jurors whose links to Enr o n wer eeither nonex i stent or attenuated. F i nally , while Causey’s well publicized dec i sion to plead guilt y s h ort l y b e fore t r ial created a dan g er of juror prejudice, the District Court to ok appropri

-5 Cite as: 56 1 U

. S. ____ (2010) Sy llabu s ate step s to mi tig a te th at r i s k

. Pp. 18–1 9. (b) No ac tu al pr eju d ic e c o n t am inate dSkil ling’s ju r y
. Th e Cou r t rejects Skillin g’s assertions that voir di re did not adequately detect
a n d defus e j u ror prej udice a n d t h a ts e vera l s e a t ed j u rors were b i a s ed. Pp. 20–3 4. (1) No hard-and-fast formula dicta t es t h e neces s a ry dept h or breadth of voi rdi re. Jury s e lection is “pa r ticularly with in the p r ov ince of the trial judge.” Ri stainov. Ro ss , 424 U. S. 58 9, 59 4–5 95

. When pretrial publicity i s a tis su e, moreover, “primary reliance on the judg ment of the tr ia l c o ur t makes [e spec ially] g o o dsense” be

cause the judge “si t s in the l o cale wh ere the publicity is saidto hav e ha d its effect” a n d ma y ba s e her eva l ua tion on her “own p e rception of the depth and extent of ne ws storie s tha tmigh t influenc e a jur o r.” Mu’ M

inv. Virginia , 500 U. S. 41 5, 42 7. T h e Cou r t c o n s ider s th e ade

quacy of jury selection in S k illing’s case attentive to th e respect due t odis t rict -courtdet e rm ina t ions of j u rorim pa rt ia lit ya n d of t h e measu r es n e c e ssar yto en su re th at impar t i a lity

. Pp. 20– 21. (2) Skilling fai l ed to show th at his voir direfell short of consti

tutional requi r ements. The jury-s election process w a s in su ffic i en t, Skilling maint a ins, because voir di re lasted only fiveho urs, most of t h e Dis t rictCourt ’ s q u es t i ons were co ncl u s o ry a n d fa iled a d eq ua t e ly to probe jurors’ true feelings, and the c o urt c o nsistently took pr ospec t ive j u rors a ttheir word oncet h eyc l aimed theyc o uld be f a ir , no ma t

t e r a n y ot her indica t i ons of b i as
. This Court ’ s review of t h e record, howeve r, yields a different appraisa l. The District Court initiall y screened ve nire members by eliciting their responses to a comprehen

sive ques tionnaire draftedin larg e p a rtby Sk illing. That survey helped to identify prospective juro rs ex cus ab l e for ca us e a n d s e rved as a spr i n gboar d forfu r t h e rqu estion s; vo i rd i r ethus was the culmi

nation of a le ngthy pro c ess. Mor eover, inspection of the question

na ires a n d voi rdireof the seated jur o r s r e v e als tha t , notwithstand

ing the flawsSkilling list s , the se lection process se cured jurors la rgely uninte r es ted in pub l icity ab o ut Enron a n d untou ched b yth e corporation’s collapse. Whatevercommunity prejudi c e existed in Houston generally, Skill ing’s jurors were not under its s w ay. Relying
on Irvinv. Do wd , 366 U. S., at 72 7– 72 8, S k illingassert s the District Court s h ould not have a cce pted j u ro rs’ p r omises of fai r ness. But a number of factors show that the Di s t rictCourtha d fa rles s rea s on than the tr ial c o ur t in Irv i n t o dis creditj u rors ’ a s s u ra nces of im pa rt i

ality: News s t ories about E n ron contained nothing res e mbling the horrifyi n g i n fo rm a t ion rife in repo rt s ab o utLes lie Irvin ’ s ra m p a g e of
r o bber i es an d mu r d er s; Houstonsh ar es lit tle in c o mmonwith the r u ra l com m unit yin which Irvi n’s t r ia l proceeded; circula t i on figures for Hous t o n m e dias o urces were fa r lowe rthan the 95% sa tur a tion lev e l6 SKILLING v. UNITED STAT ES Sy llabu s recorded in Irvin; and Skilling’s seated jurors exhibited nothing like the display of bias shown in Irvin

. In anyev ent, the Distr i c tCour t did not s i mpl ytake v e nir e member s at theirwor d

. It quest i oned
ea ch j u ro r individua lly t ou n cove r concea led b i a s
. This fa ce-t o-fa ce opportunity to gauge demea n or and credibility, coupled with informa

tion from the questionnaire s rega rding j u rors ’ b a c kgro u n ds , opinions , a n d news s o u rces , gave the court asturdy founda t ion to a s s e ss fit

n e ss forju ryserv ic e. Pp. 22–30. (3) Skilling’s a llegation that several jurorswere ope n ly bia s ed
a l s ofails

. Inreviewin g s u ch cla i m s , t h e deference du e t odist rict courts is at its pinnacle: “ ‘A trial court ’ s findings of j u ror im pa rt ia lit y may be overturned only fo r manifest error.’ ” Mu ’Mi n , 500 U. S., a t 428. Skill in g , mor eov er, unsu c c e ssfu llych allen g ed on l yon e of th e s e a t ed j u rors for ca us e, “ s t r ong eviden ce t h a the wa s c o nvinced t h e [oth er] ju r o r s wer en o t biase dan d h a d n o t for m ed an yopin ion s as to his guilt.” Be ckv. Washi n gton , 369 U. S. 541, 5 5 7

– 5 58. A r e v i ew of t h e record rev e a l s no m a nifes terror rega rding t h e em paneling of J u r o r s 11, 20, an d 63, eac hof wh om in dic a ted, inter alia, that he or she would be fair to Skil ling and woul d r e quir e the Gov e rnment to pr ov e its case. Fou rother juro rs Skillin g clai ms he would have excluded withex tr a per e mptor ystr i k e s, Ju r o r s 38, 67, 78, an d 84, ex h ibited n o sig n s of pr eju dic e th is Cou r t c a ndisc er n
. Pp. 31–3 4.

2. S e ction 1346, which pros cribes fraudulent deprivatio ns of “the intangible right of honest s e rvices,” is properly confinedto cover only bribery and ki ckback schemes. Be cause S k illing’s allege d mi sconduct entailed no bribe or kickback, it d oes not fall within the Cour t’ s c o n fin e men tof §1346’ s pr osc r i pt ion

. Pp. 34–5 1. (a) To place Skilling’s clai m th at §1 34 6 is unconstitutionall y vague in co ntext, the Court review s the o r igin and subsequent appli

cation of the honest-services doctrine. Pp

. 34–38. (1) In a series of decisions b e gi nningin the 19 40s, the Cour ts of Appeal s, one after another, interp reted the mail-fr aud statute’ s pr ohibition of “anysc heme orar tific eto de fr aud” to inc l ude depr iv a tions not onlyof money or property , but also of intangible rights. See, e.g. , Shu s han v. Uni t ed States , 117 F. 2d 11 0, wh ic hstimu l a t ed the development of the “ho n est-serv ices” d o ctrine. Unlike traditiona l fraud, in which the victim’s loss of money or property supplied the de

fendant’ s g a in, with one the mir r o r imageof the othe r, the honest

s e rvices doct ri ne t a rget ed co rrupt ion t h a t la cked s i m i la r s y m m e t r y. While the offender profited, the be trayed party suffered no depriva

tion of money or property; instead, a thir d party, who had not been deceived, provided the enrichment. Even if the scheme occasioned a money or property gain for the be tr ayed party, courts reasoned, ac

tionable harm lay in the denial of th at p a r t y ’ s r i gh t to the offender’ s7 Cite as: 56 1 U

. S. ____ (2010) Sy llabu s “honest services.” Most of ten thes e cases involved bribery of public offic i als, but ov ertime, the c o ur ts increa s ingly recog n ized t h att h e doctrine appli e d to a private employ ee who breached his allegiance to h i s employ er , oftenbyac c e ptin gbr ibes o rkic kbac ks. By198 2, al l Courts of Appeals had embraced the hone st-services theory of f r aud. Pp. 34–3 7. (2) In1987, th is Cou r t h a lte dth e dev e lopmen t of th e in tan gi

b l e-right s doct rine in McNal lyv. United S t ates , 483 U. S. 350, 360, whic h held that the mai l -fr aud st at ute w a s “limited in scope to th e protection of p r operty rights.” “I f Con gr e ss desir e s to g ofu r t h e r, ” th e Cour t stated, “ i t must spe a k mor ec l ear l y
. ” Ibid

. P

. 37. (3) Con g r e ss r e spon ded th e n e x ty e arbyen ac tin g§1346, wh ic h provides: “For the purposes of th[e ] chap ter [of the U. S. Code that pr oh ibits, in te ralia, ma il fr au d, §134 1, a n d wir efr au d, §1343], th e ter m‘ s c h eme orar tific eto defr aud’ inc l udes a sc heme orar tific eto depr iv e an otherof th e i n tan gible r i gh t of hon e st serv ic es.” Pp 37–3 8. (b ) S e ct ion 1 3 4 6 , properly confined t ocore ca s e s , is not uncons t i

tu tion allyv a g u e. Pp. 38–51. (1) To satisfy du e pr oc ess, “ apen a l sta t u t e [mu s t] defin eth e criminal offense [1] with su fficient definitenes s that ordina ry people
ca n unde r s t a n d wha tcondu c t is prohib ited a n d [2 ] in ama nner tha t does n o t en cou r ag e arbitr ar yan d disc r i min a tor yen for c e men t .” Kolende rv. La w s o n , 461 U. S. 352, 357. Th e v o id-for

- vag u en ess doc

trine embraces these requirements. Skilling contends that §1346 meets neither of the two due

- process essen t ial s
. But thi s Cour t mus t , if pos s i b l e, cons true, not co ndemn, Congr e s s ’ ena c tmen t s
. S ee, e.g., Civil Service Comm’nv. Letter Carri ers , 413 U. S. 548, 571. Aler t to §134 6’ s poten t ial br ead t h , th e Cou r ts of Ap peals have div i ded on how best to inter p r e t the statute. Unif ormly, however, they have declined to thr o w out the statute as ir r e mediablyv a g u e. This Cour t ag r ees th at §13 46 sh o u ld be c o n s tr ued r a th erth an in v a lidated. P. 38–39. (2) The Court looks to the doctrine develo ped in pre- McNally
c a ses inanen deav orto asc e r t ain the mea n ingof th e phr a se “the in

ta ngib le right of hones ts e rvices .” Thereis no doub t tha tCongres s intended §1346 to refer to and incorporate the honest- s ervices doc

trine reco gniz ed in Courts of Appeals’ de cisions before McNallyde

railed the int a ngible-rights theory of f

r a u d

. C o n g r e s s , i tb e a r s e m ph asis, en ac t e d §134 6 on the heels of McNallyand drafted the
s t atute us ing tha tdecision’s ter m in ology
. See 48 3 U. S., at 3 55, 362

. Pp. 39–4 0. (3) To pr eserve wh at Con gr e ss c e r t ain l yin ten d ed §1346 to
c o v e r, the Cour t par e s the p r e- McNallybo dy of precedent down to its core: In the m a in, the pre- McNallyc a ses i n v o lv ed fr au du len tsc h e mes to deprive another of ho ne st services through bribes or kickbacks8 SKILLING v. UNITED STAT ES Sy llabu s supplied by a third party who had no t been deceived. I nparsing the various pre- McNally decisio n s, the Court ac knowledges tha t Skill

in g ’ s v a gu en ess c h allen g e h a s for c e , for h o n e st-serv i ces dec i sion s were not models of cla r ity orcons is tency

. It ha s long b een the Court ’ s pra c t i ce, howe ver, b e fore s t riking afedera l s t a t ut e a s im per miss ibly vague, to consider whethe r theprescription is amenable to a limit ing const r uction. See, e.g
. , Hoop er v. California , 1 55 U. S. 64 8, 657. Arg u ing ag ainstany limit in gconstruction, Skillingcontends th at it is i m po ssi ble to iden t i fya salv ag eable h o n e st-ser v i c e s c o r ebe

cause the pre- McNally ca s e s a r e inco ns is tent a n d hopeles s l y unclea r
. This Cour t r ej e c t ed an ar gument of the same tenorin Le tter Carri ers , 413 U. S., at57 1–5 72. Alth ou ghsom eappl ic ation s of th e pr eMcNally ho ne s t -s ervices doct rine occa sioned disagreeme n t among the Courts of Appeals, these decisions donot c l oud the fac tthat the v a st majority of cases involved offender s who, in violation of a f i duciary duty, participated in briber y or ki ckback schemes. Indeed, McNall y itself pr esen te d a par a dig m atickic kbac k fac tpatter n
. 483 U. S., at 352 –3 53, 36 0. Inv i ew of th i s h i stor y , th ere is n odou b t t h at Con g r e ss in ten d ed §134 6 to r e ac h at le astbr ibes an d kic kbac ks. Bec a u s e r e ad

ing the s t a t ute to pros crib eawider ra ngeof offens ive c o nduct wo uld raise vaguene ss concerns, the Cour t holds that §13 46 c r i minalizes onlythe brib e-and-kickback co re of the pre- McNa lly cas e law. Pp. 41–4 5. (4) The Go vernment urges the Cour t to go fur t herby reading §134 6 to pr os c r ibe an oth e r c a teg o r y of conduct: undi s clos ed s e lf

dealin gbya pu blicoffic i al orpr ivate employee. Neither of the Gov

er n m en t’ s ar gu men t s insu ppor tof th is position withstands close in

spec tion. Con t r a r yto the fi r s t, McNallyits e lf did not center on non

dis c los u re of aconflicting f i na ncia l interest, but rathe rinvolved a
c l assickic kba c ksc h e me. See 483 U. S., at 3 52– 35 3, 3 60. Read in g §134 6 to pr o s c r ibe br ibes an d kic kba c k s—an d n o th in gmor e— sati sfie s Con g r e ss’ u n d ou bted aim to r e v e r s e McNallyonits f a c t s. Nor is the Court persuaded by the Gov e rnment’ s ar g u ment that the pre- McNallyconflic t-of-inter est c a ses c o ns titute c o r eap plic ations of t h e hones t -s ervices doct rine. Alt h ou gh the Courts of Appea l s upheld hones t -s ervice s convictions for s o me conflict-of-interes t schemes , they
rea c hed noco ns ens u s on wh ich s c hemes q u a lified. Given the rela tive infrequency of those prosecutions andthe i n ter c i r c uit inc o nsistenc ie s theypr oduc ed , the Cour t c o nc ludes that a r e asonab le l i mitingc o n s t ruct ion of § 1 3 4 6m u s texclude t h is amorphous category of cases. Further dispelling doubt on this po intis t h e principle that “a mbigu

ityc o nc er ning the ambit of c r i minal statutes should be resolved in favor of lenity.” Clevelandv. United States , 531 U. S. 12, 25. Th e Cour t ther efore r e sist s the Gov e rnment’ s less c o nstr ai ned c o nstr uc -9 Cite as: 56 1 U

. S. ____ (2010) Sy llabu s tion of §1346 absent Congress’ clea r inst ruct ion ot herwi s e. “ I f Con

g r ess desir e s t og o fur t her,” the Cour t r e iter ates, “it mus tspeak mor e clea rly t h a nit ha s
. ” McNally, 483 U. S., at 360. Pp. 45–4 7. (5) Inter p r e ted to enc o mp ass onlybr i b er yand kic kbac k
s c hemes , §1 34 6is not uncons t itutio na lly vague. A p r ohibition on fraudulently depriving another of on e’ s hon e st serv ic es byac c e ptin g br ibes orkic k bac ks pr esen t s n e ith e ra f a ir -n otic e n o r anarbitr ar y prosecution problem. See Kolender , 461 U. S., at 357. As to fairn o t i ce, ithas a l wa ys b een clea r t h a tb r ib es a n d kickba cks cons t i t u t e hones t -s ervice s fra u d, Williams v. United States , 341 U. S. 97, 10 1 , an d th e statu t e’ s me ns re areq u irement furtherb l unts a n y notice
conce r n, s ee, e. g
. , Sc rew s v. United States , 325 U. S. 91, 101 –1 04. As to arbitr ar yprosec utions, the Cour t perc eiv e s no sig n ificant r i sk that the honest-services statute, as hereinterpreted, will be stretched out of shape. Its prohibition on brib es an d kic kbac ks dr aws c o n t en t n o t only from the pre- McNallyc a se law , bu t also fr om fede r a l st atu t e s pr osc r ibin gand defin i n gsimilarc r i mes. Pp. 48–4 9. (c) Skilling did not violate §134 6, as the Court interprets th e sta t ute. TheGovernment charged Skilling with cons piring to de

fr au d En r o n ’ ssh ar eh older s bymisr epr e sen t in gth e c o m p an y ’ s fisc a l health to his own pr ofit, but the Gov e rnment nev e ral leg e d that h e solicitedor accepted side p a yments from a third pa rt y in excha n ge for makingthese misr epr e sentations. Because the indict ment allege d three objects of the conspiracy—hon est-services wire fraud, money

or-property wi re fraud, and securi ties fraud—Skilling’ s conviction is flawed. See Ya t e s v. Unit ed States , 354 U

. S. 298. Th i s deter m in a t i on, howeve r, does notneces s a rily req u ire revers a lof t h e cons pira cy convict i on , forerrors of t h e Yates variety are subject to harmless

error a n a l ys is

. The Court le aves the parti e s’ dispute about whether t h e erro r he re wa s ha rm les s for res o lut i on on rem a nd, a l ong wit ht h e q u es t i on whether reve rs a lon t h e cons pira cy cou n twoul d t o uch a n y of Skilling ’ s other conv ictions. Pp. 49–5 0. 554 F. 3d 52 9, affir m ed inpar t , v a c a ted in par t , an d r e man d ed.

G IN SB U R G , J., delivered the opinion of th e Court, Part I of which was joined by R OBERTS , C. J., an d S TEVENS , S CALIA , K ENNEDY , T HOMAS , an d ALITO , JJ., Part II of w h ichwas joined by R OBERTS , C. J., an d S CALI A , K ENNEDY , and T HOMAS , JJ., and Part III of which was joined by R OBERTS , C. J., and S TEVENS , B REYER , ALITO , a n d S OTOMAYOR , JJ. S CALI A , J ., filed a nopinion con c u rrin gin pa rta n d conc urri ng in t h e j u dgm e nt , in which T HOMAS , J., joined, and K ENNED Y , J., joined except as to Part III. ALITO , J ., filed a nopinion conc ur ring in pa rta n d concu rrin gin t h e ju dg men t

. S O T OMAYOR , J., f iled an opinion co ncurring i npart and dis

senting in part, in whi c h S TEVENS an d B REYER , JJ., joined._________________

_________________ 1 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

# SUPREME CO URT O F THE UNI TED STATES

No. 08–1 39 4


### JEFFREY K. SKILLING, P E TIT I ONER v. UNITE D STAT ES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Ju n e24, 2010 ] 

### J USTICE 

### G IN S B UR G

### delivered the opinion of th e Court. In 2001, E n ron Corporation, then the seven t h highestrevenue-grossing company in America, crashed into bankruptcy. We consider inthis opini o n two questions arising from the prosecution of JeffreySki lling, a longtime Enron executive, f o r crimes c o mmitted before the corporation’s collapse. First, did pretrial pu blicity andcommunity prejudice prevent Sk illing from obtaining a fair trial? Second, did the jury i m properly convict Ski lling of conspiracy to c o mmit “honest-services” wire f r aud , 18 U. S. C. §§371, 1343 , 1346? Answering no to bothquestions, the Fifth Circuit affirmed Skilling’s convictions. We conclude, in comm on with the Court of Appeals, that S k illing’s fair-trial argument fails; Skilling, we hold, d i d not establish that a presumption of juror prejudice a r ose or tha tactualbias infected the jury that t r ied him. But we disagree with t h e Fifth Circuit’s hones t -service s ruling. In proscribing fraudulent deprivations of “the in tangible right of honest services,” §1346, Congress intended at least to reach schemes to defraud involving bribes and kickb a cks. Con­2 SKILLING v. UNITED STAT ES Opinion of theCourt 

### struing the honest-services stat ute to extend beyond th at core meaning, we conclude, would encounter a vagueness shoal. We therefore hold t hat §1346 covers only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickba ck, it does not fall within §1346’s proscription. We therefore affirm in part and vacate in p a rt. I Founded in 1985, Enron Corporation grew from its headquarters in Houston, Texa s, into one of the world’s leading energy companies. Skilli ng launched his career there in 1990 when Kenneth Lay, the company’s founder, hired him to head an Enron subsidiary. Ski lling steadil y rose through the corporation’s ranks, serving as presidentand chief operating officer, and then, beginning in February 2001, a s chief executive officer. Six mon t hs later, o n August 14, 2001, Skilling resigned from Enron. Less than four months after Skilling’s depa rture, Enron spiraled into bankruptcy. The company’s stock, which ha d traded at $90 per sha r e in August 2000, plummeted to pennies per share in late 2001. Attempting to comprehend what caused the corporation’s collapse, the U. S. Department of Justice formed an EnronTask Forc e, comprising prosecutors and FBI agents fr om around the Nation. TheGovernment’s investigation uncovered an elaborate conspiracy to prop up Enron’s sh ort-run stockprices by overstating the company’s financial well-being. In the years following Enron’s bankruptcy, the Government prosecute d dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the corporation’s chain of command: On July 7, 2004, a gran d jury indicte d Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer. These three defendants, the indictment alleged, “engaged in a wide-ranging scheme to deceive the in

­3 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### vesting pu blic, including Enron’s shareholders, .

. . about the true performance of Enron’s businesses by: (a) manipulating Enron’s publicly reported financial results; and (b) ma king public sta t ements and representations about Enron’s financial performance and results that were false and misleading.” App. ¶5, p. 277a. Skilling and his co-conspirators, the indictment continued, “enriched themselves as a result of the scheme through salary, bonuses, grants of stock and stock o p tions, other profits, and prestige.” Id., ¶14, at 280a.Count 1 of the indictment charged Skilling with conspiracy to c o mmit securities and wire fraud; in particula r, it alleged t hat Skilling had sought to “depriv[e] Enron and its shareholders of th e intangible right of [his] honest services.” Id., ¶87, a t318a. 1 

### The indictment further charged Skilling with more than 25 substantive counts of securities fraud, wire f r aud, maki ng false representations to Enron’s auditors, and insider trading. In November 2004, Skilling moved to transfe r the trial to another venue; he c o ntended that hostilit y toward hi m in Houston, coupled with exte nsive pretrial publicity, had poisoned potential jurors. To support this assertion, Skilling, aided by media experts, sub m itted hundreds of news reports detailing Enron’s downfall; he als o presented affidavits fr om the experts he engaged portra ying community attitud e s in Houst o n in comparison to ot her potential
venues. The U. S. District Co urt fo r the Southern District o f

——————

1 Th e mail- an d wir e -fr au d st atu t es c r i minalize the use of the mails or wires in furt h e ra nce of “ a nys c hem eorartifice to defraud, or for obtaining money or property by means of false or fraudu lent pretense s, representations, or prom ises .” 18 U. S. C. §134 1 (m ail fr au d); §134 3 (wire fraud). The honest-services statu t e, §134 6, defi n e s “th e ter m ‘scheme or artifice to defrau d’ ” in these provisions to include “aschem e or artifice to d e prive another of the inta ngib le right of ho nes ts e rvices .”4 SKILLING v. UNITED STAT ES Opinion of theCourt 

### Texas, in accord wit hrulings i ntwo earl ier instituted Enron-related prosecutions, 2 

### denied the venue-transfer motion. Despite “isolated incidents of intemperate co mmentary,” the court observed, media coverage “ha[d] [mostly] been objective and unemotional,” and the facts of the case were “neither heinous norsensational.” App. t o Brief for United States 10a–11a. 3

### Moreover, “courts ha[d] commonly” favored “eff ective voirdire .

. . to ferret out any [juror] bias. ” Id

. , at 18 a. Pretrial publicity ab out the case , the court concluded, did not wa rrant a presumption tha t Skilling would be unable to obtai na fair tria linHouston. Id. , at 22a. In the mont hs leading up to the trial, the District Cou r t solicited from the parti es questions the court might use t o screen prospective jur o rs. Unable to agree on a questionnaire’s format and content, Skilling and the Government submitted dueling docume nts. Onveni re members’ sources of Enron-relat e d news, for example, the Govern

­

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2 See United S t atesv. Fasto w , 292 F. Su pp. 2d 91 4, 91 8 (SD Tex

. 200 3); Or derin United Statesv. Hirko , No. 4:03 –c r

– 0 009 3 ( S D Tex ., Nov

. 24, 200 4 ) , Doc

. 484, p. 6. Th ese r u lin g s wer emade bytwo oth e r judges of the same District. Three j u dge s res i ding in the a r eathus independently found tha t defenda n ts inEnron-rela ted ca s e s could obtain a fair tr ial in Houston.

3 Painting a dif f erent picture of t h e m e diac o vera ge s u rro unding E n ron’s colla ps e, J US TI CE S OTOMAYOR ’s opini o n relies heavily on affidavi t s of media expe rts and jury consulta nts submit ted by Sk illing in support of his venue-transfer motion. E.g ., po st , at 2, 3, 4, 5 (opinionc o nc ur r i ng in part and di ssenting in pa rt) (hereinafter dissent); post , at 5, n

. 2, and 23, n

. 10; post , at 26, and 35, n. 22. Th e s e Skilling-em ployed expert s selected and emphasized ne gative stat e m ents in various news stories. But the Distr i c tCour t Judge did not find the ex per t s’ samp les r e pr esentative of the co verage a tlarge; having “[m]eticulous[ly] review[e d] all of the evidence” Skilling presente d, the court concluded that “incidents [of news reports us ing] les s - than-obj ective langua ge” we re dwar fed by“t h elar g elyfac t -basedton e of most of the ar ticles.” App. to Br ief forUn it ed State s 7a, 10a, 11 a. See also post , at 3 (ac k n o wledgi ng th at “m an yof th e stor ies w e r estr a igh t forw ar d n e w s items”).5 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### ment proposed that they tickboxes from a check list of generic labels such as “[t]elevision,” “[n]ewspaper,” and “[r]adio,” Record 8415; Skilling proposed more probing questions a s king venire members to list the specific names of their media sources and to report on “what st[ood] out in [their] mind[s]” of “all the things [they] ha[d] seen, heard or read about Enron,” id., at 8404–8405. The Distric tCourt rej e cte d the Government’s spare r inquiries i nfavor of Skilling’s submissi on. Skillin g’s questions “ [ we]re more helpful,” the court said, “because [they] [we]re generally

. . . open- e nded and w[ould] allow the potential jurors to give us m o re meaningful informa

tion.” Id., at 9539. Th e court converted Skill ing’s submission, with s light modifications, into a 77-ques t ion, 14-page document that asked prospective jurors abo ut, inter a l i a , their sourc e s of news and exposure to En ron-related pu blicity, belief s concerning En ron and what cau s ed its col

lapse, opinions regardi n g the defe ndants and their possible guilt or innocence, and relati onships to the compan y and to anyone affected by its demise. 4

——————

4 Questions included the follo wing: “Wha t a r e you ropinions ab o ut the compensationthat executives of la rge corpora t ions r e ceive?” ; “ H av e y o u, anyfamilymember s, or fr iends eve r worked fo r or a pplied for work with,” “done bus i nes s with,” or “own ed stock in Enron Corporation or
a n y Enron s ub s idia ries a n d pa rtners hip?”; “Do you kno wa n yone .
. . who has been negatively affected orhu r ti nan y wayby wh at h a ppen e d
a tEnron?”; “Do you have a nopinio n abo ut the cause o f the collapse of E n r o n ? I f Y E S , w h a ti s y o u ro p i n i o n ? O nw h a td oy o ub a s e y o u r opin ion ? ”; “Hav e y o uh e ar d orr e ad abou tan yof th e E n r o n c a ses? If YES , plea s etell us the na me of a ll s o urces from whic h yo u have hea r d
orr e ad abou tth e En r o n c a ses.”; “Hav e y o ur e ad an ybooks orseenany m o vies ab out E n ron? If YE S , plea s e des c rib e .” ; “Are you a n gr y ab o ut wha tha ppened with Enron?If YES , plea se expla i n.”; “Do you have a n opinion about

. . . Jeffrey Skilling .

. . [?] If YES, what is your opinion? On wha tdo you b a s e your opinion?”; “ B a s ed on a n y t hing you have hea r d, rea d , o rb een told[,] do you have a n y opinion ab o ut the guilt or innocence of

. . . Jeffrey Ski lling[?] If

. . . YES

. . . , please explain.”;

“ [W]ould a n y opinion youm a y have fo rm ed rega rdin g E n ronor a n y of6 SKILLING v. UNITED STAT ES Opinion of theCourt 

### In November 2005, th e District Court mailed the questionnaire to 400 prospective ju rors and received responses from nearly all the addressees. The court granted hardship exemptions to ap proximately 90 individuals, id., at 11773–11774, and the parties, with the court’s approval, further win n owed the pool by excusing another 119 for cause, hardship, or physical disability, id. , at 11891, 13594. The parties agreed to exclude, in particular, “each and every” prospective juror who said that a preexisting opinion ab out Enron or the defend ants would prevent her from impartially considering the evidence at trial. Id., at 13668. On Decem b er 28, 2005, three weeks before the date scheduled for the commencementof trial, Causey pleade d guilty. Ski lling’s attorneys immediately requested a continuance, and the District Court agreed to delay the proceedings until the end of January 2006. Id., at 14277. In the interim, Skilling re newed his change-of-venue motion, arguing that the juro r questionnaires revealed pervasivebias and that news accounts of Causey’s guilty plea further tainte d the ju ry pool. If Houston remained the tri al venue, Skilling urged that “jurors need to b equestioned individually by both the Court andcounsel” concerning their opinions of Enron and “publicity issues.” Id., at 12074. The Distric tCourtag ain declined to move the trial

. Skilling, the court concluded, still had not “establish[ed] that pretrial publicity and/or community preju d ice raise[d] a presumption of inher e nt jury prejudice.” Id., at 1411 5. The questionnaires a n d voir dire , the court observed , provided sa feguards adequate to ensure an impartial ju ry.

—————— the defendants prevent you from im parti a lly considering the e v idence presented during the trial of .

. . Jeffrey Skilling[?] If YES or UNSU R E

. . . , pleas eexplain.”; “Is there anything els eyou feel is importa n t for th e c o ur t to know abou ty o u ? ” Rec o r d1301 3–1 30 26.Cite as: 56 1 U

. S. ____ (2010) 7 Opinion of theCourt 

### Id., at 14115–14116. Denying Skilling’s request for attorney-led voir dire , the court said that in 17 years on the bench: “I’ve found .

. . I get more forthcoming responses from potential jurors than the lawyers on either side. I don’t k n o w whether pe ople are sus p icious of la wyers— but I think if I ask a person a question, I will get a candid response much easier than if a lawyer asks the question.” Id., at 11805. But the co urt promised to give co unsel an opportunity t o ask follow-up questions, ibid., a n d it agreed that venire members s h ould be examined individually about pretrial publicity, id., at 11051 –11053. Th e court also allotted th e defendants jointly 14 p e remptorychallenges, 2 more tha nthe standard number prescribed by Federal Rule of Criminal Procedure 24(b)(2) and (c)(4)(B). Id., at 13 673–13675. Voir dire began on Jan uary 30, 20 06. The Dis trict Court first empha s ized to the venire the importance of impartiality and explained the presumption of inn o cence and the Government’s bur den of proof. T h e trial, th e court nex t instructed, was not a forum “to s eek vengeance against Enron’s for m er officers,” or to “p rovide remedies for” its victims. App. 823a. “The bo ttom line,” the co urt stressed, “is that we want .

. . jurors who .

. . will faithfully, conscientiously and imparti ally serve if selected.” Id., at 823a– 824a. In response to the court’s query whether any prospective juror questioned her ability to adhere to thes e instructions, two indivi duals indicated that t h ey could n o t be fair; they were therefore excused for cause, id. , at 816a, 819a–820a. After questioning the venire as a group, 5

### the Distric t Court brou ght p r ospective jurors one by one to the bench

——————

5 Among other questions, the court asked wh eth e rsy mpath ytowar d the victims of Enron’s collapse or a desire to see justic e done would
ov er power pr ospec t iv e ju r o r s ’ impar t ial i ty

. App. 839a–8 4 0a.8 SKILLING v. UNITED STAT ES Opinion of theCourt 

### for individual examination. Although the qu estions varied, the pr ocess gener a lly tracke dthe following format : The court asked about exposu re to Enron-related news and the content of an y stories that stood ou t in the prospective jur o r’s mind. Next, the c o urt homed in on questionnaire a n swers that raised a red flag signaling possible bias. The court then p e rmitted each side to pose follow-up questions. Finally, after the venire member s t epped awa y , the court e n tertained and ruled on challenges for cause. In all, the court gra n ted one of the Gove rnment’s fo rcause challenges and denied fo ur; it granted three of the defendants’ challenges and denied six. The parties agreed to excuse three additional jurors for cause and one for hardship. By the end of the day , the court had qualified 38 pro

spective jurors, a num ber suffi cient, allowing for peremptory challenges, to empanel 12 jurors and 4 alternates. 6 

### Before the jury was sworn in, Skilling objected to the seating of six jurors. He did not contend tha t they were in fact biased; instead, he urged th at he would have used

——————

6 Selection procedures of similar style and duration took place in t h ree Enron- r e la t e d crim i n a l ca s e s ea rlier pros ecut ed in Hous t o n— United States v. A r th ur An ders en LLP, No. 4:02–c r–00 12 1–1 (SD Tex

. ) (cha rges a g a i ns t Enron’s outs ide a ccounta n ts ); United Statesv. Bayly , No. 4:03–cr–0 036 3 (SD Tex.) (charges agai nst Merrill Lynch and Enro n executives for alleged sham sale s of Nig er i a nbar g e s); United Stat es v. Hirko , No. 4:03–c r–00 09 3 (S D Tex

. ) (fr au d an d in sider

- t r adin gc h arg e s ag ain s t f iv e En r o nBr oadban d Serv ic es executives). See Brief fo r United St ate s 9 (In all thr ee c a ses, the Distr i c tCour t “distr i b uted a j u ry q u es tionna ire to apool of s e vera l hundred pote ntia l j u rors ; dis

misse d in div i d u als w h ose r e spon ses tothe questionnair e demonstr ated b i as or ot her dis q ualifying cha r a c t e ris t ics ; a n d, a f t e r furt her q u es t i oning b yt h ecou r ta n d cou n s e l, s e lect ed aj u ry f r omt h e re m a ining venir e in one day

. ”); Gov e rnment’s M e mo randum of Law in Response to Defendants’ Joint M o tion to Tr ansferVenue in Unit ed St ates v. Skilling et al., No. 4:0 4–c r–00 02 5 ( S D Tex ., Dec

. 3, 2 004), Re c o r d , Doc

. 231, pp. 21–2 8 (des c r ibin gin depthth e ju ry -selec tionpr oc essinth e Ar thu r Anders enan d Baylytrials).9 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### peremptories to exclude them had he not exhausted his supply by striking seve ral ve nire members after the court refused to excuse them for caus e. Supp. App. 3sa–4 sa (Sealed). 7 

### The court overruled this objection. After the ju rors took t h eir oath, the District Court told them they c o uld not discuss the cas e with an yone or follow media accounts of the proceedings. “[E]ach of you,” the court explained, “needs to be ab solutely su re that your decisions concerning the facts will be based only on the evidence that you hear and read in this courtroom.” App. 1026a. Following a 4-month trial and nea r ly five days of deliberation, the jury found Skilling gui l ty of 19 counts, including the honest-services-fraud conspiracy cha r ge, and not guilty of 9 insider-trading count s. The District Cour t sentenced Skilling to 292 months’ imprisonment, 3 years’ supervised release, and$45 milli onin restitution. On appeal, Skilling raised a hos tof challenges to his convictions, includingthe fair-t rial and h o nest-services arguments he presses here. Regarding the former, th e Fifth Circuit initially determined that the volume and negative tone of m e dia cove rage generated by Enron’s collapse created a presumption of juror prejudice. 5 5 4 F. 3d 529, 559 (2009). 8

### The cour t also noted potential

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7 Skilling had requested an addit i onalper e mptory strik eeach time t h e Dis t rictCourtrej e ct ed afor-ca us e obj e ct ion. T h e co urt , w h ichha d already grant e d two extra peremptories, see supra , at 7, denied each request.

8 The Fift h Cir c u itdes crib e d t h e m e diacove ra ge a s follows :
“ L oca lnews pa pers ra n ma ny pers ona lint e res t s t or ies in which sy mpath e t i cin div i du als ex pr essed feeli n g s of an g e r an d betr ay a l toward Enron.

. . . Even the [Houston] Chronicle ’s sports page wrote of Skilling’s guilt as a foregone co nclusion. Similarly, the Chro nicle ’s ‘Pethouse Pet of the Week’ section menti o ned that a petha d ‘enj oye d
wa tching thos e Enron j e rks b e ing led a w a yin ha ndcuffs .’ Thes e a r e bu t a few ex ample s of th e Chronicle ’ s cov e r a g e .” 55 4 F. 3d, at55 9 (footnote omitted).10 SKILLING v. UNITED STAT ES Opinion of theCourt 

### prejudice stemming from Caus ey’s guilty plea and from the large number of victims in Houst o n—from t h e “[t]housands of Enron employees .

. . [who] lost their job s , and .

. . sa w their 401(k) acco unts wiped out,” to Houstonians who s u ffered spil lover econo m ic effects. Id., a t55 9– 560.The Court of Appeals stated, however, that “the presumption [of prejudice] is rebut table,” and it therefo r e examined the voir direto determine whether “the Distri ct Court empa nelled an impartial jury.” Id., at 561 (internal quotation marks, italics, and some capitalization omitted). The voir dire was, in the Fifth Circuit’s view, “proper an d thorough.” Id., at 562

. Moreover, the court noted, Skill ing had challenged on ly one seat ed juror—Juror 11—for
cause. Although Juror 11 made some troubling comments about corporate greed, the Distric tCourt “observed [his] demeanor, listened to h i s answers, and believed he would mak e the government prove its case.” Id., at 564. In su m, the Fifth Ci rcuit found that the Go vernment h a d overcom e the presumption of prejudic e and that Skilling had not “show[n] th at any juro r who actu ally sat was prejudiced against him.” Ibid. The Court of Appeals also rejected Skilling’s claim that his conduct did not indicate an y conspira c yto comm it honest-services fraud. “[T]he jurywas entitl ed to convi c t Skilling,” the court stated, “on these el ements”: “(1) a material breach of a fiduciary du ty .

. . (2) that results in a detriment to the empl oyer,” including one occasioned by an employe e ’s decisionto “wit hhold material information , i.e., informa t ion that he had reason to believe would lead a reasonable employer to change its conduct. ” Id., at 547

. The Fifth Circuit did not address Skilling’s argument that the honest-services statute, if not interpreted to exclud e his actions, should be invalidated as unconstitutionally vague. Bri e f of Defendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21.11 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### Arguingth at the FifthCircuite r red in its consideration of these clai ms, Skilling sought reli ef from this Court. We granted certiorari, 558 U. S. ___ (2009), and now affirm in part, vaca te in part, and remand for further proceedings. 9 

### We consider first Skilling’s allegation of juror prejudice, and next, his honest-services argum e nt. II Pointing to “the community passion aroused by Enron’s collapse and the vit r iolic media tr eatment” aimed at him , Skilling argues that his trial “never should have proceeded in Houston.” Brief for Petitioner 20. And even if it had been possible to select impartialjurors in Houston, “[t]h e truncated voir dire .

. . did almost nothing to weed ou t prejudices,” he contends, so “[f]ar from rebutting the presumption of prejudice, the record below affirmatively confirmed it.” Id., at 21. Skillin g’s fair-trial claim thu s raises two distinct que stions. First, did the District Cour t err by failing to move the trialto a different venue based on a presu m ption of prejudice? Second, did actual prejudice contaminate Skilling’s jury? 10 

### A 1 The Sixth Amendment secures to criminal defendants

——————

9 We also g r an t e d c e r t ior a r ian d h e ar d ar gu men t s th is T e r mintwo other ca s e s ra is ing q u es tion s conce r ningthe hones t -s ervices s t a t ute’s scope. See Blackv. Uni t ed States , No. 0 8–8 76; Weyhrauchv. Un i t ed States , No. 08–11 96. Tod a ywe v a c a te an d r e man dth o s e dec i sion s i n light of this opinion. Black , post , p. ___; W e yhrauch , post , p. ___
. 10 Assuming , as the Fifth Cir c u it fo und, tha tapres umption of prej udice arose in Houston, the question prese n ted in Skilli ng’s petition for cert iora ri ca s t s his a c t u a l -pr ej u dice a r gum e nta s a ninq u iry int owhe n , if ever, that p r esumption may be rebu tted. See Pet. forCer t . i. Al

though we find a presump t i o n of prej udice unwa rra nted in this ca s e , w e cons ider t h e a c t u a l -prej u dice is s u e to be fairly subsumed within the ques tion we agreed to decid e
. See th is Cou r t’ s Ru le 14.1(a).12 SKILLING v. UNITED STAT ES Opinion of theCourt 

### the right to trial by an imparti al jury. By co nstitutional design, that trial occ u rs “in the State where the .

. . Crimes .

. . have been committed.” Art. III, § 2 , cl. 3. Se e also Amdt. 6 (right to trial by “ju r y of the State and dis

trict wherein the crime shall have been committed”). The Constitution’s place-of-trial prescri ptions, however, do not impede transfer of theproceedin g to a different district a t the defendant’s request if extra ordinary local prejudi c e will prevent a fair trial—a “basic requirement of due process,” In re Murchi s on , 349 U. S. 133, 136 (1955). 11 

### 2 “The theory of our [trial] sy stem is that the co nclusions to be reached in a cas e will be induced only by evidence and argum e nt in opencourt, and not by any outside influ­

——————

11 Venue transfer in federal court is go verned by Federal Rule of Criminal Procedure 21, wh ich instr u c t s that a“c our tmust tr ansfer th e proceeding .

. . to another dis t rict if the c o ur t is sati sfied t h at so g r eat a prejudice against the defendant exists in the t r a n s f errin gdis t rictt h at the defendant c a nnot obtai na fairand i m par t i a l tr i a lther e.” As t h e lan g u a g eof th e Ru le su g g e sts, di str i c t -c ou r tc a lls onth e n e c e ssityof tr an sferar e gr an ted a h e alt h ymeasu r e of appell ate-c o u r t r e spec t. See Plattv. Min n esota Mini ng & Mfg. Co. , 37 6 U. S. 2 40, 2 45 ( 1 9 6 4 )

. Federa l court s have invoked t h e R u le t o m o ve cert a i n highly c h a r ge d cases, for example, the pro s ecutio n arisi n g from the bombing of the Alfred P. Mu rra h Federa l Office Building in Oklahoma City. Se e United Statesv. Mc Vei gh , 918 F. Su pp. 146 7, 147 4 (WD Okla. 1996). They have a l s oexercis e d dis cret i on t odeny ve nue-t ra n s fer req u es t s in cases involving substantia l pretrialpubli c ity and com m unity impact, forex ample, th e pr osec u t ion s r e su ltin gfr om th e 1993 Wor l d Tr ade Center bombi n g, see United Statesv. Sa la me h , No. S5 93 Cr

. 0180 (KTD) (S DNY, S e pt. 15, 1993); United Statesv. Y o u sef , No. S12 93 Cr

. 180 (KTD) (SDNY , Ju ly18, 1 997), af f’ d 327 F. 3d 56, 15 5 (C A2 2 0 0 3 ) , a n d the pros ecution of J o hn Wa lker Lindh, refe rred to in the press as the Amer ican Talib an, see United Sta t esv. Lindh , 212 F. Supp. 2d 5 41, 5 49– 55 1 ( E D Va . 2 002)

. Skillingdo es not arg u e, distinct from his due proces s challe n g e, th at th e Distr i c tCou r t abu sed its discretion under Rule 21 by dec lining to move hi s tr ial. We therefore review t h e Dis t rictCou r t ’ s venue-t ra ns fer decis i on only for com p lianc ewith the Constitut i on.13 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### ence, whether of private talkor public print.” Pattersonv. Colorado ex rel. Attorn ey Gene ral of Colo. , 20 5 U. S. 454, 462 (1907) (opinion f o r the Court by Holmes, J.). When does the publicity attending conduct charged as criminaldim prospects that the trier can judge a case, as due process requires, impartially, unswayed by outside influenc e? Because most cases of consequen c e garner a tleast som e pretrial pu blicity, courts have considered this question in diverse settings. We begin our di scussion by addressing the presumption of pr ejudice from which the Fifth Ci rcuit’s analysis in Skilli ng’s case proceeded. The foundation precedent is Rideauv. Lou i siana , 373 U. S. 723 (1963). Wilbert Rideau robbed a bank in a small Louisiana town, kidnaped three bank empl oyees, and killed one of them. Police interrog a ted Ridea uin jail wi thout couns el present and obtained his confessi on. Witho u t informing Rideau, no less se ek ing his consent, the police filmed the interrogation. On thre e separa te occasions shortly before the trial, a local television station broadcast the film t o audiences ranging from 24,000 to 53,000 individuals. Rideau moved for a cha n ge of venu e, arguing that he couldnot receive a fair trial in the parish where the crime occurred, whi c h had a population of approxim ately 150,000 people. The trial court denied the motion, and a jur y eventually convicted Rideau. TheSupreme Court of Louisiana upheld the conviction. We reversed. “What t h e people [in the community] saw on their tel e vision sets ,” we observ ed, “was Rideau, injai l , flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidn apping, and murder.” Id

. , at 725. “[T]o the te ns of thousands of people who saw and heard it,” we explained, the interrogation “in a very real sense wasRideau’s tri al—at which he pleaded guilty.” Id., at 726. We therefore “d[id] no t hesitate to hold, without pausingto examine a particu larized tra n­14 SKILLING v. UNITED STAT ES Opinion of theCourt 

### script of th e voir dire , ” that “[t]he kangaroo court proceedings” trailing the televised confe ssi on violated due process. Id., at 726–727. We followed Rideau ’s lead in two later cases in which media coverage manifestly tain ted a criminal prosecution. In Estes v. Texa s , 38 1 U. S. 532, 538 (19 65), extensive publicity before trialswelle d into excessive exposure during p r eliminary court pr ocee dings as reporters and television c r ews overran the courtroom and “bombard[ed]

. . . the community with the sights and sounds of” the pretrial hearing. The media’s overzealous reporting e f

forts, we observed, “led to considerable disruption” an d denied the “judicial serenity and calm to which [Billie Sol Estes] was entitled.” Id., at 536. Similarly, i n Sheppardv. Maxwell , 384 U. S. 333 (1966), news reporters extensively cover e d the sto r y of Sam Sheppard, who was accused of bludgeoning his pregnan t wife to death. “[B]edla m reigned at the courth ouse during the trial a n d newsmen took ove rpra ctically the entir e courtroom,” thrusting j u rors “into the role of celebrities.” Id., at 353, 355. Pretrial mediacoverage, which we characterized as “month s [of] virulent publicity abou tSheppard and the murder,” did not alone deny due process, we noted. Id., at 354. But Sheppard’s case involved more than heated reporting pretri al: We upset the murde r conviction because a “carnival atmosphere” pervaded the trial, id., at 358. In each of these cases, we overturned a “convictio n obtained in a trial atmosphere that [was] utter l y corrup t e d by press coverage”; our deci sions, however, “cannot b e made to st and for the proposition that juror exposure t o

. . . news accounts of the crime .

. . alone p r esumptively deprives the defendant of due process.” Murphyv. Flor

ida , 421 U. S. 794, 798–799 (1975). 12 

### See also , e.g., Pa tton

——————

12 Mu rphyinvolved the robbery prosec ution of the noto rious J a c k15 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt



### v. Yount , 4 67 U. S. 1025 (1984). 13 

### Prominence does n o t necessarily produce prejudice, and juror impartiality , we have reiterated, does not require ignoran c e
. Irvinv. Dowd , 366 U. S. 717, 7 22 (1961) (Jurors are not required to be “totally ignorant of th e facts and issu es involved”; “scarcely any of those best qualifi e d to serve as jurors will not have formed some impressio nor opinion as to the merits of t h e case.”); Reynoldsv. United S t ates , 98 U. S. 145, 155–156 (1879) (“[E]very ca se of public interest is almost, as a matter of necessi ty, brought to the attention of all the intelligent people in the vicinity, and scarcel y any one ca n be foundamong those best f i tted for jurors who has not read or h e ard of it, and who h a s not some

—————— M u r p hy , a c o n v ic ted mu r d er erwh o h e lped mas t er min dth e 1964 h e is t of the Star of India sap p hire fromNew York’s Am erica nMus e umof Natur a l Hi sto r y
. Pointingto “ex t ensiv e pr ess c o v e r a g e ” ab out him, M u r p hy mov e d to tr an sferv e n u e
. 42 1 U

. S., at 7 96. Th e tr ialc o u r t denied t h e m o t i on a n d aj u r yconv ict e d M u rphy

. We a ffirm ed. Murphy’s trial, weexplained, wa s mark edly different from the proceedings at i ssu e in Ri deau v. Loui si ana , 373 U. S

. 723 (1 963), Estes v. Texas , 381 U. S. 5 3 2 (196 5), an d Sheppardv. Maxwell , 384 U. S. 333 (1 96 6) , which “entirel y lack[ed] .

. . the solemni t y and sobriet yto which a defen d an t is en titled ina sy stem th atsu bsc r ibes t oan y n o tionof fair n e ss an d r ejec t s th e v e r d ic t of a mob.” 421 U. S. , at799. Voir dire revea l ed no gr e a thos t ilit y towa rd Mu rph y ; “ [ s ] om e of t h e j u rors ha d a
va gue re collec t ion of t h e rob b e ry wit hwhi c h [he] wa s ch a r ged a n d ea ch h a d some kn owledg e of [h is] past c r i mes, bu t n o n ebetr ay ed an ybelief in the relevance of [his] pa st to the present case.” Id., at 80 0 (footn o te omitted).

13 In Yo unt , th e media r e por t ed onJon Yo unt’ s c o n f ession to a br u t a l
m u rder a n d his prior convict i on for t h e crim e , which ha d b een revers ed due to a violation of Mi ran dav. Arizona , 384 U. S. 436 (196 6). Dur i ng voir di re , 7 7 % of pros pect ivej u rors a c k n o w ledged they would carry a n opin ionin to th e ju r ybox , a n d 8 of th e 14 seated ju r o r s an d alter n ate s admi tted th eyh a d for m ed a nopin ionas to Yo un t’ s g u il t. 467 U. S., a t 102 9– 103 0. Nev e r t h e less, we r ejec t ed Yo u n t ’ s pr esu m ption

- ofprejudice claim. The adverse pub lic ityand c o mmunityoutr ag e, we noted, were a ttheir height prior to Yount’sfirs t trial, four yea r s b e fore the s e cond pros ecution; time ha d he lped“sooth[e] and eras[e]” commu

nity prejudice, id., at 1034.16 SKILLING v. UNITED STAT ES Opinion of theCourt 

### impression or some opi n ion in respect to its merits.”). A presumption of prejudice, our decisions indic a te, attends only the extreme case. 3 Relying on Rideau , Este s , and Sheppa rd , Skilling asserts that we need not pause to examine the screening questionnaires or the voir direbe fore declaring his ju ry’s verdict void. We are not pe rsu a ded. Important diffe rences separate Skilling’s prosecuti o n from tho s e in which we have presumed juror prejudice. 14 

### First, we have emphasized in prior decisions the size and characteristics of the community in whi c h the crime occurred. I n Rideau , for example, we noted that the murder was co mmitted in a parish of only 150,000 residents. Houston, in contrast, i s the fourth most populous city in the Nation: At the time of Skillin g’s trial, more than 4. 5 millionind i viduals eli gible for jury duty re sided in the Houston area. App. 62 7a. Given this large, diverse pool of potential jurors, the suggestion that 12 im partial individuals could not be empaneled is hard to s u stain. See Mu’Minv. Virginia , 5 00 U. S. 41 5, 429 (199 1) (potential for prejudic e mitigated by the size of the “ m etropolitan Washington [D. C.] sta t istical area, which has a population of over 3 million, and in whi c h, unfortunately, hundreds of murders are committed each year”); Gen t ilev. Sta t e B a r of Nev. , 501 U. S. 1030 , 1044 (1991) (plurality opinion) (reduced likelihood of prejudice where venire was drawn from a pool of over 600,000 individuals). 15

——————

14 Skilling’s reliance on Es t e s an d Sheppard is particularly misplaced; those case s i n volved media interfer encewith courtro o m proceeding s duri n g

trial. See supra , a t14. Skil lin gdoes n o t as ser tth at n e ws covera gerea c hed a n d influe nced his j u r ya f ter it wa s empa neled. 15 According to asurvey commissioned by Ski lling in conjunction with h i s fir s t motio nfora v e n u ec h an g e , on ly12.3% of Hou s t o n i an s n a med him when asked to lis t Enr o n ex ecutiv es they believed guilty of crimes.17 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### Second, although news stories ab out Skilling were no t kind, they contained no conf ession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expecte d to shut from sight. Rideau’s dramatically staged admission of guilt, for i n stance, was likely imprinted indelibly in the mind of an yone who watched it. Cf. Park erv. Randolph , 442 U. S. 6 2 , 72 (1979) (plurality opinion) (“[T]he defenda n t’s own co nfession [is] probably the most probative and damagin g evidence that can be admitted against him.” (internal quotation marks omitted)). Pretrial publicity about Ski lling was less memorabl e and prejudicial. No evidence of the smoking-gun variety invited prejudgment of his culpability. See United Sta t esv. Chagr a , 669 F. 2d 241, 251– 252, n. 11 (CA5 1982) (“A jury may have difficulty i n disbelieving or forgetting a defendant’s opinion of his own guilt but have no diff iculty in rejecting the opinion s of others because they may not be well-founded. ” ). Third, unlike cases in which trial swiftly followed a widely repo rted c r ime, e.g., Rideau , 373 U. S., at 724, over four years elapsed between Enron’s bankruptcy and Skill

ing’s trial. Although repo rters covered Enron-relat e d news throughout this period , the decibel level of m e di a attention diminished somewhat in the yea r s followin g Enron’s collapse. See App. 700a; id. , at 785a ; Yount , 467 U. S., at 10 32, 1034. Finally, and of prime s i gnificance, Skilling’s jury acquitted him of nine insider-tradin gcounts. Similarly, earlier instituted Enron-related prosecutions yield e d no over­

—————— App. 3 75a–3 7 6a. Inr e spon se to the fol l o w -up question“[w]hat wor d s come to mind when you he ar the name Jeff Skilling?” , two-thirds o f
r e spon den t s f a iledto say a s i n gle n e g a tiv ew o r d , id., at 37 6a: 43 % either had never heard of Sk illing or st ate dthatnothing came to m i nd when they hea r d his name, a n d anot her 23 % knew Skilli ng’s name was
assoc i ated wit hEn r o nbu t repor t ed n oopin ionabou th i m, Rec o r d3210– 321 1; see App. 417a–4 92a.18 SKILLING v. UNITED STAT ES Opinion of theCourt 

### whelming victory for th e Government. 16

### I n Ride au , Es tes , and Shepp a rd , in marked contras t , the jury’s verdict did not underm i ne in any way the su pposition of juror bias. It would be odd for ana p pellate court to pres ume prejud ice in a case in which juro rs’ actions r un counter to that presumption. See, e.g., United States v. Arzola-Amaya , 867 F. 2d 1504, 1514 (CA5 1989) (“The jury’s ability to discern a failure of proof of guilt of some of the alleged crime s indicates a fair minded consideration of the issues an d reinforces our belief and conclu sion that the media coverage did no t lead to the deprivation of [the] right to a n impartial tr ial.”). 4 Skilling’s trial, in sh ort, shares l i ttle in common with those in wh ich we approved a presumption of juror prejudice. The Fifth Cir c u i t reached the opposite conclusion based primarily on th e magnitude and nega tive tone of media attention directed at En ron. But “pr e trial public

ity—even pervasive, adverse publ icity—does not inevitably lead to an unfair trial.” Neb r aska Pres s Assn. v. Stu

art , 427 U. S. 539, 554 (1976). In this case, a s just noted, news stories about Enron did not p r esent the kind of vivid, unforgettab l e information we have recognized as particularly likely to produce prejudice, and Housto n’s size an d diversity dil u ted the media’s impact. 17

——————

16 As the UnitedStates summarizes, “[i]n Hirko , the jury deliberate d for several days and did no t convict any Enron defend ant; in Bayly , which wa s ro ut inely des crib e d as ‘t he firs tEnron cri m i na l t r ia l,’ the ju r y c o n v i c ted fiv edefen d ants, .

. . bu t ac qu itted a for m erEn r o nex ec utive. At the sentencing pha s e of Bayly , th e j u ry found aloss amount of slightlyov er $13 m illion, ev en thoughthe g o v e rnment had arg u ed tha t the true loss .

. . was $40 m illion.” Br ief for United States 9

– 1 0 (citation omitted).

17 The Fifth Cir c u it, mor e over , did not separ a te med i a at tention aimedatSki l l i ngfr om that dev o ted to Enr o n’ s downfall mor e g e ner a lly

. Data submi tte d by Ski lling in support of his first motio nfor a venue19 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### Nor did En ron’s “sheer number of victims,” 554 F. 3d, at 560, trigge r a presumption of prejudice. Although the widespreadcommunity impact necessitated careful identification and inspection of pr ospective jurors’ connections to Enron, the extensive screening qu estionnaire and followup voir di rewere well suited to th at tas k

. An d hindsigh t shows the efficacy of these devices; as we discuss infra , at 24, jurors’ links to Enron were either n o nexistent or attenuated. Finally, although Causey’s “well-publicized decision to plead guilty” shortly before tri al created a danger of juror prejudice, 554 F. 3d, at 559, the District Court took appropriate steps to reduce that risk. The court delayed the proceedings by two wee k s, lessenin gthe immediacy of tha t development. And duri ng voir dire , the court asked abou t prospective jurors’ exp o sure to recent publicity, including news regarding Causey. Only two venire members recalled the plea; neith e r mention e d Causey by name, and neither ultimately served on Skil ling’s jury. App. 888a , 993a. Alth ough publicity about a codefendant’s guilty pl ea calls for inq u iry to gua r d against actual prejudice, it does not ordinarily—and, we are satisfied, it did not here—
warran tan automatic presumption of prejudice. Persuaded that no presumption arose, 18

### we conclude that the District Cou rt, in declining to order a venue change, did not exceed constitutional limitations. 19

—————— tr ansfersug g ested tha ta slim pe rcentage of Enron- related stori e s specifically na med him. App. 572 a. “[ W]hen publicity is ab out t h e ev ent, r a ther than dir e c t ed at in dividual defendants, this may lesse n any prejudicial imp a ct.” Un ited Stat es v. Hueftle , 687 F

. 2d 130 5, 13 1 0 (CA10 198 2).

18 The parties disagree about whether apre s umption of prej udice ca n be r e bu tted, a n d, if it c a n , wh at stan dar dof pr oof g o ver n s th at issu e. Compar e Br ief forPetition er25 –35 withB r ief forUn ited St ates 24–3 2 , 3 5

– 3 6

. Beca us e we hold th a tno pres umption a r os e, w eneed not, a n d do not, reach th ese questions.

19 The dissent acknowledges that “the prospe ct of se ating an unbiase d20 SKILLING v. UNITED STAT ES Opinion of theCourt 

### B We next consider whether actu al prejudice infected Skilling’s jury. Voir dire , Skilling asserts, did not adequately detect and defuse juror bias. “[T]he record .

. . affirmatively confirm[s]” preju d ice, he maintains, because several seated jurors “ p rejudgedhi s guilt.” Brief for Petitioner 21. We disagree with Skilling’s characterization of the voir dire and the ju rors selected through it

. 1 No hard-an d-fast form ula dictates the necessary dept h or breadth of voir dire

. See United Statesv. Wood , 299 U. S. 123, 145–146 (1936) (“Impartiality is not a technica l conception. It is a stat e of mind. For the ascertainment of this mental attitude of appropriat e indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emp hasized, is “particularl y within the province of the trial judge.” Ristaino v. Ross , 424 U. S. 5 89, 594–595 (1976) (internal quotation marks omitted); se e, e.g., Mu’Min , 500 U

. S., at 424; Yount , 467 U. S., at 10 38; Rosales-Lopez v. Unit e dSt at es , 451 U. S. 182, 188–189 (1981) (plurality opinion); Connorsv. United Sta t es , 158 U. S. 408–413 (1895). When pretrial publicity is atissue, “primary reliance on the judgme nt of the trial court mak e s [especially] good sense” beca use the ju dge “sits in the local e where the publicity is said to have had its effect” and may base her evaluation on her “own perception of the depth and exte nt of news stories that might influence a juror.” Mu’Min , 500 U. S., at 427. Appellate courts making after-the-fact

—————— jur yin Houston was not so r e mote a s to c o mpel the c o nc lusion that th e District Court acted unco n stitutiona l l y in denying Skilling’s motion to cha n ge venue
. ” Post , at 20. The dissent’s conclusion that Ski lling did notreceivea fa ir t r ia l a ccordingly t u rns on it s percept ion of t h e a d e qu ac yof th e jur y -s election process.21 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### assessment s of the m e dia’s impact on jurors should bemindful that their judgments lack the on-the-spot comprehension of the situa t ion possess ed by trial judges. Reviewing courts are prop erly resistant to second

guessing the trial judge’s estimation of a juror’s impartia l

ity, for that judge’s appraisal is or dinarily influenced by a host of fact ors impossible to capt ure fully in the record— among them, the pro s pective jur o r’s inflection, sincerity , demeanor, candor, body language, and apprehension of duty. See Reynolds , 98 U. S., at 156–157. In contrast to the cold tra nscript received by the appellate court, the inthe-moment voir dire affords the trial courta more intimate and immediate basis for ass e ssing a venire member’s fitness for jury service. We consider the adequacy of jury selection i nSkilling’s case, therefore, attentive to the respect due to distric t

- c ourt deter m inations of juror im

partiality a n d of the measures necessary to ensure th at impartiality. 20

——————

20 Th e dissen t recognizes “the ‘wide discreti on’ owed to trial courts when it comes to jury-related issues,” po st , at 22 (qu o tin g Mu ’Mi nv. Virgi n ia , 500 U. S. 415, 4 27 (1 99 1)), bu t it s an aly s is of th e Distr i c t Court’s voir d i resometime s fail s to demo nstr ate tha t a w ar eness. For example, the dissent f a ults the Di s t rict Courtfor n o tq u es t i onin g pros pect ive j u rors rega rdin g t h eir “kno wledge of or feelings about” Causey’s guilty plea. Post , at 28. Bu t th e c o u r t c o uld r e ason ably decline to ask direct questio n s involv ing C a usey’s plea to avoid tip p ing off until-tha t -moment uninf ormed veni r e member s thatthe plea ha d occurred. Cf. App. 822a (c ounsel fo r Ski llingurg e d Di strict Court to find a wayto question v e nire member s ab out Causey“without mentioning anything”). Nothing inhibitedde fens e couns el from inq u iring ab o ut venire members’ kno w ledgeof the plea; i n deed, co unse lposed such a question, id. , at 993 a; c f

. po st , a t28 , n. 1 4(a cknowledging tha tcouns el “squeeze[d] in ” an inquiry whether a v e nir ememberhad “r ead ab o u t any guilty pleas in this case over the last month ortwo” ( i nternal qu otationm a r k s omit ted)). Fr om this C o ur t’ s loftyand “panor amic ” vantage point, post , at 22, lines of voir dire inquiry that “ m ight b e helpful in assess ing whether a juror is impart ial ” are not hardto conceive

. Mu ’ M

in , 500 U. S., at 425. “To be c o n s titu tion allyc o mpelled , howeve r, it is not enough that such questi ons migh t be helpful. Rath er ,22 SKILLING v. UNITED STAT ES Opinion of theCourt 

### 2 Skilling de ems the voir direin sufficient because, he argues, jury selection lasted “just five hours,” “[m]ost of the court’s questions were conc lusory[,] high-level, and failed adeq uately to p r obe jurors’ true feel in gs,” and the court “cons istently took prospe cti ve jurors at their wor d once they cl aimed they could be fair, no matte r wha tothe r indications of bias were present.” Brief for P e titioner 10– 11 (emphas is deleted). Our revi ew of the record, however , yields a different appra i sal. 21 

### As noted, supra , a t4–6, and n. 4, the District Courtinitially screened venire members by eliciting their responses to a comprehensive questionnaire drafted in large part by Ski lling. That survey helped to identify prospective jurors excusable for cause a n d served as a spring

board for further questions put to remaining members of the array. Voir diret hus was, in the court ’ s words, the “culmination of a lengthy process

. ” App. 841a; see 554 F. 3d, at 562, n. 51 (“We consider the .

. . ques t ionnaire in

—————— the tr ial c o ur t’ s failur e to a s k thes e questions must render the defendant’s trial fu ndamentally unfair.” Id., at 4 25– 42 6. Ac c o r d in gappr opria t edeference t ot h e Dist rictCourt , we ca nnotcha r a c t e rize j u ryselection in t h is case a s fu ndamentally unfair. Cf. su pr a , at 8, n

. 6 (same se lec t io npr oc ess w a s u s ed in other Enron-rela ted pros ecutions ).

21 In addition to focusing on th e adequacy o f voir dire , o u r decis i ons have a l s o“ta k e[n] into a cco unt .

. . other mea s ures [that] were us ed to mitig a te the adv e r s e effec t s of public ity

. ” Neb r ask aPres s As s n
. v. Stuart , 427 U. S. 539, 565 (197 6). We hav e n o ted, for ex ample, th e prophyla ct ic e ffectof “ e m p ha t i c a n d clea r ins t ruct ions on t h e s w orn dut yof ea ch j u ror t odecidet h e i ssues on ly on evid ence presented i n open court.” Id., at 564. Her e , th e Distr i c tCou r t’ s instr u c t ion s were unequiv oc al; the jur o r s , the c o ur t emphasized, wer ed u tybound “to reach a fair and imp a rtialverdict inth is c a se b a sedsolelyonth e evidence [the y] hear[d] and read inth[e] courtroom.” App. 1026a. Per e mptor yc h alleng es, too , “pr o v i d[e] pr otec tion ag ain s t [pr ejudic e ],” United State sex rel . Da rcyv. Handy , 351 U. S. 454, 462 (19 56); th e Dis t rictCourt , a s ea rlier not e d, exercis e d it s dis cret i on t ogra n tt h e defen d an ts two ex tr a per e m p tor i es, App. 1020 a; see supra , at 7.23 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### assessing t h e quality of voir direas a whole. ”). 22 

### I no t h e r Enron-related prosecutions, we not e , District Courts, after inspecting venire members’ responses to questionnair e s, completed the jury-selection process within one day. Se e supra , at 8, n. 6. 23 

### The Distric tCour t con d ucted voi r dire , moreover, aware of the greater-than-normal need, due to pretrial publicity, to ensure a g ainst jury bias. At Skilling’s urging, the court examined each prospe ctive juror individually, thus preventing the spread of any prejudici a l information to other venire members. See Mu’Min , 5 00 U. S., at 425. To e n courage candor, the court repeatedly admonished th a t there were “no right and wron ganswers t o th[e] questions.” E.g., App. 843a. The court denied Skilling’s request for attorney-led voir direbecause, in it s experience, potential jurors were “ m ore forthcoming” when the court, rather thancounsel, a s ked the question. R e cord 11805. The parties, however, were accor d ed an oppor t unity to as k follow-up questions of every prospective juror brought to

——————

22 The dissent’s analysis und ervalues the 77-ite mquestionnaire, a pa rtof t h e s e lect ion proces s difficultt oport ra y a s “ c urs o ry,” post , at 30 , or“anemic , ” post , at 35. Notably, the “open-ended questions about [prospective jurors’] impressions of Enron or Skilling” that the di sse nt contends should have bee nasked, post , at 30, were asked—on the questionnaire, see supra , at 5– 6, n

. 4. M o r eov er , th e Distr i c tCou r t gave Skilling’s counsel relati vely free rein to a s k venire members abou t their responses on the questionnaire. See, e. g., App. 869 a–8 70 a; id., at 878 a, 9 11a, 9 53a. Th e qu estion n a ir e pl u s follow-u p oppor t u n i tyto interrogate po tential jurors surelygaveSkilling’s counsel “clear avenue[s] for .

. . permissible in quiry.” But se e post , at 31, n
. 17. See al s o App. 9 6 7 a(couns el for S k illing) (“J u dge, f o r t h e reco rd, if I don’ta s k any questions, it’s because the Co urt a n d other co uns el have co vered it.”).

23 One of the e a rlier prosecutions ta rgetedthe “Big Five” public accountingfirm Arthur Ande r s en. S ee su pra , at 8, n

. 6. Amon gmedia
r e ader s an d au ditor s , th e n a me an d re putation of Arthur Anders en likely sparke d no less a t t e ntion th an the name and r e putation of Jeffrey Skilling. Cf. su pr a , a t16– 17, n

. 15.24 SKILLING v. UNITED STAT ES Opinion of theCourt 

### the bench for colloquy. Skilling’s counsel declined to ask anything of more than half of the venire members ques

tioned individually, including eight eventually selected for the jury, because, he explained, “the Court and other counsel have covered” everyt hin ghe wanted to know. App. 967a. Inspection of the questionnaires and voir direof the individuals who actuall yserved as jurors satisfies us that, notwithstanding the flaws Skilling lists, t h e sel e ction process successfully secured ju ror s who were largely un

touched by Enron’s collapse. 24

### Eleven of the se ated jurors and alternates reported no co nnection at all to Enron, while all other jurors reported at most an insubstantial link. See, e. g
. , Supp. App. 101sa (Juror 63) (“I once m e t a guy who worked for Enron. I cannot remember h i s name.”). 25

### As for pretrial publicity, 14 jurors and alternates specifically stated that they had paid scant attention to Enron-related news. See, e.g., App. 859a– 860a (Juror

——————

24 In considering whether Skill ing was tried before an imp a rtialjury, the dissent relies extensivel y on venire members nots e lect ed for t h a t jury. See, e. g. , post , a t6 , n. 4(q uoting the q u es tionna ires of ten venire
m e m b ers ; a l l were ex cus e d for ca us e b e fore voir dire co mmenced, see Rec o r d11891) ; post , at 7, n

. 6 (qu o tin gthe qu estion n a ir es of 15 v e n i r e member s; non esa t on Skill i n g ’ s jur y); post , at 10– 11, n

. 7 (qu o tin g voi r diretestimony of six venire members; none sat on Sk illi ng’s jury); post , at 2 8

– 34 (r epo r tin gat len g th voir diretesti m ony of Venire Members 17, 29, 6 1 , 74, 75 , and 101; no ne sat on Ski lling ’ s jury). Sta t ements b y nonjuro r s do not themselves call into question the adequacy of the juryselection process; elimina t i o n of th ese venire members is indeed one indicator that the proce ss ful f illed its function. Critically, as discusse d infra , at 24–2 6, th e seated j u r o r s sh owed little kn owled g e of orin ter e st in, and we re p e rs onally unaf f ected by, Enr o n’s downfall. 25 See also Su pp . App. 11sa (J u r or 10) (“kn ew some c a su al c o -wor kers that owned Enron stock”); id

. , at 26sa (J u r or11) (“work[s] withsom e one who wo rk ed at Enron”); id., at 117s a; App. 94 0a (J u r or64) (two
ac qu ain t an c e s lost mon e ydu e to En r o n ’ sc o llapse); Su pp. App. 236s a (Ju r or116) (wor k c o lleagu elost mon e yas a r e s u lt of En r o n ’ s ban kr u p tc y)

.25 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### 13) (would “[b]asically” start out knowing no thing about the case because “I just .

. . didn’t follow [it] a whole lot”); id., at 969a (Juror 78 ) (“[Enron] wasn’t an ything that I was interested in reading [about] in detail. .

. . I don’t really know much about it.”). 26 

### The remaining two jurors indicated t hat nothingin the news influenced their opi n ions about Skilling. 27

### The questionnaires confirmed that, whatever community prejudice existed in Houston generall y, Skilling’s jurors were not underits sway. 28

### Although many ex­

——————

26 See also App. 850a (Ju r or10) (“I h av e n ’ t followed [En r on -r elated news] in detai lor to any extreme at all.”) ; id., at 856a (Ju r or11) (did not “g et into t h e detail s of [ t he En ron ca s e ]” a n d “j us t kind of tune[d] [it] out”); id., at 8 7 3 a(Ju r or20) (“ I was o u t of [the] state when [Enro n colla ps ed], a n d t h en pers on a lcircum s tanc es kept me fr om pay i ngmuch attention.”); id., at 892a (J u r or38) (r ecalled “n oth i n ginpar t ic u l ar” abou tmed i a c o v e r a g e ); id

. , at 9 1 3 a(Ju r or50) (“I wou l d h e arit onth e news and just let it filter in and out.”); id ., at 935a (J u r or63) (“I don ’ t really pay att e ntion.”); id., at 9 4 0 a–9 41 a (Ju r or64) (h ad “[n ] ot r e ally” b een keeping up with a n d di d not reca ll a n y ne ws ab o ut Enron); id., at 971 a (Ju r or84) (h ad n o t r e ad “an y th in gat al l abou t E n r o n” bec a u s e h e did not “wantto r e ad that stuff” (inter na l quota t ion m a r k s omi tted)) ; id., at 983 a (J u r or90) (“se ldom” r e ad th e Hou s tonCh r o n i c l e an d did not wa tch ne ws progra ms ); id ., at 995 a– 996 a (Ju r or99) (did n o t r e ad
news papers or watch the ne ws ; “I do n’ t know the detail s on what [this case] i s or what made itwhat it is”); id., at 10 10a(Ju r or113) (“n e v e r r e allypaid th at muc hattention [to] it”); id., at 1013a (J u r or116) (h ad “rea[d] a number of different articles,” b u t“ s i n c ei th a s n ’ ta f f e c t e dm e pers ona lly,” could not“ s pecifica lly reca ll” a n y of t h em ). 27 Id., at 944 a (J u r or67) (h ad n o t r e ad th e Hou s tonCh r o n i c l e inth e three months preceding the tr ial and v o lunteer ed: “I don’ t for ma n opinion bas e d on what .

. . I hear on the news ”); id., at9 74a–9 75 a (Jur or87) (ha dnot “for med anyopin ions ” about Ski lli ng’s guilt from
news s t ories )

.

28 As t h e D. C. Circuitob s e rved, reviewingt h e im pa cton j u rors of mediac o v e r a ge of the W a te r g ate sc andal, “[t]his mayc o me a s asur prise to lawyers and judges , but it is sim p ly a fact of lif e that ma tters which interest them m a y be less fa sc inati n g to the pub lic generally.” United Statesv. Haldeman , 559 F. 2d 31, 62–6 3, n

. 37 (19 76). See also In re C h arlott e Ob s e r ver , 882 F. 2 d850, 855 –8 56 (CA4 1 9 8 9 )26 SKILLING v. UNITED STAT ES Opinion of theCourt 

### pressed sympathy for victims of Enron’s bankruptcy a n d speculated that greed contributed to the corporation’s collapse, these sentiments did not translate into animus toward Skilling. When aske d whether they “ha[d] an opinion ab out .

. . Jeffrey Skilling,” none of the seated jurors andalternates checked t h e “yes” box. 29

### An di n response to the question whether “any opinion [they] mayhave formed regarding Enron or [Skilling] [would] prevent” their impartial c o nsideration of the evidence at tri al, every juror—despite options to mark“yes” o r“unsure”— instead check e d “no.” The District Court, Skilling asserts, should not have “accept[ed] at face v a luejurors’ promises of fairnes s .” Brief for P e titioner 37. In Irvinv. Do wd , 3 66 U. S., a t 727–728, Skilling points out, we found actual prejudice despite jurors’ assurances that they could be impartial. Brief for P e titioner 26. J USTIC E 

### S OTOMAYOR 

### , in turn, repeatedly relies on Ir vin , which she regard s as closely analogous to this case. See post , a t23 (opinion concurrin g in part an ddissenting in part) (hereinafter di ssent). See also, e.g., post , at 15–1 6, 33, 35, 39–40. We disagree with that chara c terization of Irvin

. The facts of Irvinare worlds apart from those presente d

—————— (“[R]emarkabl yin the eyes of many,” “[c]ases such as those involving the Water g at e defendants, the Absc a m defendants, and .

. . John DeLor e an , all c h ar ac ter i zed bymas s iv e p r etr i al medi a r e por t ag e an d commentary, nevertheles s proceeded to tri a l with juries which

. . . wer e sati sfac tor ilydisc losed to h av ebeenu n a ffec t ed (in d eed, insome instan c e s bli ssf u llyu n a w a r eof oru n t ouched) by tha tp u blicity.”); Bri e f for ABC, Inc., et al. as Amici Curiae25–31 (desc r ibin goth e rex amples).

29 On e jur o rdid n o t c h ec k anybox , ex plainin gth at sh e l iv e d inan other S t a t e when Enron we nt b a n kr upt and therefore “was not fully
a w a r e of a ll the fa ct s rega r d ing Enro n’s f a ll [a nd] t h e m e diacovera ge.” Su pp. App. 62 sa (Ju r or20). Two oth e rjur o r s , Ju r o r10 an d Ju r o r63, indicated in answer to a d i fferent questi on that they had an opinio n about Ski lling’s guilt, but voir dire establi s h e d th eyc o u l d be imp a r t ial

. See infra , at 32, an d 33, n

. 3 3

.27 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### here. Les l ie Irvin stood accused of a brutal murder and robbery spree in asm all rural community. 366 U. S., at 719. In t h e months before Irvin’s trial, “ abarrage” of publicity was “unleash ed against him,” including reports of his confessions to t h e slayings and robberies. Id., at 725–726. This Court’s description of the m e dia coverage in Irvinreveals why the dissent’s “best case” is not an apt comparison: “[S]tories revealed the deta ils of [Irvin’s] background, including a reference t o crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary an d bya court-martial on AWOL charges during the war. He was accused of being a parole viola t or. The h e adlines an nounced his police line-up identification, that he faced a lie detector test, had been pl aced at the scene of thecrime and that the six murders were solved but [he] refused to confess. Finally, they announced [Irvin’s] confession to the six murders and the fact of his indictment for four of them in Ind i ana. They reported [Irvin’s] offer to plead guilty if promised a 99- year sentence, but also the determination, on the ot her hand, of the pros ecutor to secure the death pena lty, and th at [Irvin] h a d confessed to 24 burglarie s (the modus operandiof these robberies was compared to that of the murd ers and the similarity noted). One story dramaticallyrelayed the promise of a sheri ff to devote his life to securing [Irvin’s] execution .

. . . Another characterized [Irvin] as remorseless and w i thout conscience but also as having been found san e by a court-appointed panel of doctors. In many of the stories [Irvin] was described as the ‘confessed slaye rof six,’ a parole viola t or and fraudulent-check a rti st. [Irvin ’s] court-a p pointed counsel was quoted as having rece ived ‘much criticism over being Irvin’s counsel’ and it was pointed out, by28 SKILLING v. UNITED STAT ES Opinion of theCourt 

### way of excu sing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers car r ied the story that I rvin had orally admitted [to] the murder of [one victim] as well a s ‘the robbery-murder of[a second individual]; the murder of [a third individual], and the slaughter of three members of [a different family].’ ” Id. , at 725–726. “[N]ewspapers in which the[se] stories appeared were delivered regularly to 95% of the dwellings in” the county where the trial occurre d, which had a population of onl y 30,000; “radio and TV stations , which likewise blanketed that county , also carried extensive newscasts covering th e same incidents.” Id. , at 725. Reviewing Irvin’s fair- trial claim, this Court noted that “the patter nof deep and bitter p r ejudice” in the community “ w as c l early reflected in the sum total of the voir dire”: “370 prospective jurors or al most 90% of those examined on the point .

. . entertained some opinion as to guilt,” and “[8] out of the 12 [jurors] tho u ght [Irvin] was guilty. ” Id., at 727 (internal quotation m a rks omitted). Although these jurors declared they could be impartial, we held that, “[w]ith his life atstake, it is not requiring too much that [Irvin] be tried inan atmosphere undisturbed by s o huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his gu ilt.” Id. , at 728. In this case, as noted, supra , at 1 7 , news stories about Enron contained nothing resemb ling the horrifying information rife in reports about Irvin’s rampage of robberies and murders. Of ke y importance, Houston shares little in common with the rural communit yin which Irvin’s trial proceeded, and circu lation figures for Houston media sources were far lower than the 95% saturation level29 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### recorded in Irvin , see App. to Brief for Unite dStates 15a (“The Houston Chronicle

. . . reaches less than one-third of occupied households in Houston.” (internal quotation marks omitted)). Skilling’s se ated jurors, moreover, exhibited nothin g lik e the display of bi as shown i n Irvin

. See supra , at 2 4–26 (notin g, inter alia , that none of Skilling’s jurors answered “yes” when askedif they “ha[ d] an opinion about .

. . Skilling”). See also post , at 19 (diss e nt) (distinguishing Mu’Min from Irvinon si milar bases : the “offense occurred in [a large] metropolitan

. . . area,” media “coverage was not as pervas ive as in Irvinand did not contain the same sort of dam a ging information,” and “the seated jurors uniformly disclaimed having ever formed an opinio n about the case” (internal quotation marks omitted)). In light of these large differences, the District C o urt had fa r less reas onthan did the trial court in Irvin to discredit jurors’ pro m ises of fairness. The Distric tCour t, mo reover, did not simply t a ke venir e members who proclaimed theirimpartiali t y at their word. 30

### As noted, all of Skilling’s jurors had already affirmed on their questionnaires that they would have no trouble basing a verdict only on the evidence at trial. Nevertheless, the court followed up with eachindividually to uncover concealed b i as. This face-to-face opportunity to gauge demeanor and credibility, coupled with information from the questionnair e s regarding jurors’ b a ckgrounds , opinions, a n d sources of news , gave the court a sturdy foundation to assess fit n ess for jury service. See 554 F. 3d, at 562 (The District Court made “thorough” credibility determinations that “requir[ed] more than just the [venire

——————

30 The co urt vie w ed with skepticism , for example, Venire Member 104’ s pr omi s es th atsh e c o u l d “abide byl a w,” follow th e c o u r t’ s in str u ctions, and find Skilling notguilty if the Government did not prove its
c a se, App. 10 04a; “I h av eto g a u g e .
. . demean or , all t h e an swer s sh e g av eme,” the c o ur t stated, a n d “[s]he per s uaded me thatshe c o uld no t be fair and impartial, so sh e’ s ex c u sed, ” id., at 100 6a.30 SKILLING v. UNITED STAT ES Opinion of theCourt 

### members’] statements that [they] could be fair.”). The jury’s not- g u ilty verdict on nine insider-trading counts after nearly five days o f deliberation, meanwhile, suggests the court’s assessment s were accurate. See United States
v. Haldeman , 559 F. 2d 31, 60, n. 28 (CADC 1976). Skil ling, we conclude, failed to show that his voir direfell short of constitutional requir e ments. 31 

### 3 Skilling also singles ou t severa l jurors in particular and contends they were openly biased

. See United Sta t esv. Martin ez-Salazar , 528 U. S. 304, 316 (2000) (“[T]he seating of any j u ror who should have been dism is sed for caus e

. . . require[s] reversal.”). In reviewing claims of this type, the deference due to district courts is at its pinnacle: “A trial court’s findings of ju ror impartiality may be overturned only for manifest error.” Mu’Min , 500 U. S., at 428 (internal quotation marks omitte d). Skilling, moreover, unsuccessfully challenged only oneof the seated jurors for cause, “stro ng evidence that he wa s convincedthe [other] jurors were not biased and had not formed any opinions as to his guilt.” Beckv. Washin gton , 369 U. S. 541, 557–558 (1962). With these considerations in mind, we turn to Skilling’s s p ecific allegations of juror partiality.

——————

31 Skilling emphasize s that voir di redid not weed out e v ery juro r who
s u ffered from Enron’s colla ps e b e ca us e t h e Dis t rictCourtfa iled t ogra n t his for-ca us e cha llenge t o Venire Mem b er 2 9 , whos e ret i rem e ntfund lost $50,000 d u e to ripple effects from the decline in the value of Enro n stoc k. App. 880a. Cr itic a l l y , h o wev e r, Ven i r eM e mber 29 did not si t on Skilling’s jury : Instead, Ski lling struck her using a pe remptory challenge. “[I]f [a] defendant elects to cure [ at r ia l j u dge’s erro neous for

ca us e ruling] b yexercis i ng aperem p t o ry cha llenge, a n dis s u b s eq uent ly convicted b yaj u ry on whic hno b i as ed j u r o r s a t,” we have held, “he ha s not been depriv ed of any

. . . c o nstitution al r i gh t.” Un ited Sta t esv. Martin ez -Salazar , 528 U. S. 304, 307 (2 0 00). In deed, th e “u se [of] a perem p t o ry cha llenge t oeffecta nins t ant a neous cur eof t h e error”
exem plifies “ aprincipa l reas on for perem p t o ries : t o help s e cure t h e c o n s titu tion al g u ar an tee of t r ial byanimpar t ial ju r y .” Id., at 316.31 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### Skilling contends that Juror11—the only seated juror he challenged for ca use—“expre ssed the most obvious bias.” Brief for Petitioner 35. See also post , at 36 (dissent). Juror 11 stated that “gree don Enron’s part” t r ig

gered the company’s b ankruptcy and that co rporate exe c utives, driven by avarice, “walk a lin e that stretche s sometimes the legality of something.” App. 854a–855a. But, as the Fifth Circui taccura tely summarized, Juror 11 “had ‘no ide a ’ whether Skilling had ‘crossed that line,’ and he ‘didn’t say that’ every CEO is probablya crook. He also a s s e rted that he could b efair and require the governmentto prove it s case , that he did n o t believe everything he read in the paper, that he did not ‘get into the details’ of the Enron cove rage, that h e did not watch television, and t hat Enron was ‘old news.’ ” 554 F. 3d, at 563–564. Despite his criticism of greed, Juror 11 remarked th at Skilling “earned [his] salar[y],” App. 857a, and said he would have “no problem” telling his co-worker, who had lost 401(k) funds due to En ron’s collapse, that the ju ry voted to acquit, if that scenario ca me to pass, id., at 854 a. The District Court, noting that it had “looked [Juror 11] in the eye and .

. . heard all his [ans wers],” fou n d his assertions of impartiality credible. Id. , at 858a; cf. supra , at 29,
n. 30. We agree with the Court of Appeals that “[t]h e express fin d ing that Juror 11 was fair is not reversible error.” 554 F. 3d, at 564. 32

### Skilling also objected at trial to the seating of six specific jurors whom, he s a id, he would have excluded had he not already exhausted his perem p tory chall e nges. See supra , at 8–9. Juror 20, he obs e rves, “said sh e was ‘angry’ about Enron’s collapse and that she, too, hadbeen ‘forced

——————

32 Skilling’s tria l counsel and jury consult a nts a pparent ly did not
r e g a r dJu r o r1 1 as so “o bv iou s [ly] bia s [ed],” Br ief forPetit i on er35, as t o wa rra ntexe rci s eof aperem p t o ry c h a llenge.32 SKILLING v. UNITED STAT ES Opinion of theCourt 

### to forfeit [h er] own 401 (k) fun d s to survive la yoffs.’ ” Reply Brief 13. But Juror 20 made clear during voir dire th at she did not“personally blame” Skilling for th e los s of her retirement account. App. 875a. Having not “pa[id] mu ch attention” t o Enron-related ne ws, she “quite honestly” did not “have enough information to know” whe t her Skilling was probably guilty, id ., at 873a, and she “th [ought] [she] could be” fa ir and impa rtial, id., at 875a. In li ght of these answers, the District C o urt di d not commit manifest error in finding Juror 20 fit for jury service. The same is true of Juror 63, who, Skilling points out, wrote on her questionnaire “that [Skilling] ‘probably kne w [he] w[as] breaking the law.’ ” Reply Brief 13. During voi r dire , however, Juror 6 3 insisted that she did not “really have an opinion [about Skilling’ s guilt] either way,” App. 936a; she did not “kno w wha t[she] was thinking” when she completed the qu estionnaire, but she “absolutely”presumed Skilling innocent and confirmed her understanding th at the Government would “have to prove” h i s guilt, id., at 937a. Inresponse to follow-up qu estions from Skilling’s co unsel, she a g ain stated she would not presume that Skilling violated any laws and could “[a]bsolutely” give her word that sh e could be fair. Id., at 937a–938a. “Jurors,” we have recognized, “ca nnot be expected invariably to express themse lv es carefully or even consistently.” Yount , 467 U. S., at 10 39. See als o id., at 104 0 (“It is here that the fed e ral [appellate] court’s deference must operate, for while the cold rec o rd arouses some conc ern, only the trial judge could tell which of these answers was said wi th the greates tcomprehe nsion and certainty.”). From wher e we sit, we cannot conclude that Juror 63 was biased. The four remaining jurors Skilling said he would have excluded wi th ext r a pe remptoryst rikes exhibited no sign of prejudice we candis c ern. See App. 891a– 892a (Juror 38) (remembered no media coverage about Enron and said nothing in her experience would prevent herfrom being33 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### fair and im partial); Supp. App. 131sa–133sa, 136sa (Juror 67) (had no connectionto Enron and no anger about it s collapse); App. 969a (J uror 78) (di dnot “know much abou t” Enron); Su pp. App. 16 5sa, App. 971a (Juror 84) (had not heard or re ad anythin g about En ron and said she did n o t “know enou gh to answer” the question whether she was angry about the company’s demi se). Skilling’s counse l declined to ask follow-up questions of any of these jurors and, indeed , told Juror 84 he h a d nothing to ask because she “gave all the right answers.” Id., at 972a

. Whatever Skilling’s reasons for wanting to strike these four ind i

viduals from his jury, he cannot credibly assert they displayed a disqualifying bias. 33 

### In sum, Skilling failedto establis h that a presumption of prejudice arose or th at actualbias infected the jury tha t tried him. Jurors, the trial court c o rrectly co mprehended, need not enter the box withemp t y heads inorder to d e termine the facts impartially. “It is sufficient if the ju

ror[s] can lay aside [their] impression[s] or opinion[s] a n d render a ve rdict based on the evidence presented in court.” Irvin , 366 U. S., at 72 3. Taking account of the full record, rather thanincomplete exchanges selectively culled from it, we find no cause to upset the lower courts’ judgment that Skilling’s jury me t that measure. Wetherefore affirm the Fifth Circuit’s ruling that Skilling received a fair trial. 34

——————

33 Although Skilling raised no objection to J u ror 10 and J u ror 87 at trial, his briefs in th is Court impugn their im partial i ty. Brief fo r Petition er14

– 15; ReplyBr ie f 13. Ev en if we allowed these tardy pleas, the voir diret e stimony of th e two jurors giv e s su ffic i en t assu r a n c e th a t they were unbiased. See, e.g
. , App. 85 0 a–8 53 a (Ju r or10) (didn o t prejudge Skilling’s guilt, indicated heco uld follow thecourt’s instruc

tions and mak ethe Gov e r n ment pr ov e it s c a se, stated h e c o u l d be fair to Skil ling, and said he would “judge on the facts”); id., a t97 4a(J uror 87) (had “not formed an opinion” on whether Skilling was guilty and
a ffirm ed s h e could a d here t o the presumption of innocence).

34 Ou r decis i ons have righ t l y s e tahigh b a rfor a llega t i ons of j u ror34 SKILLING v. UNITED STAT ES Opinion of theCourt 

### III We next consider whether Skilling’s conspiracy conviction was premised o nan improper theory of hones t

services wi re fraud. The honest-services statute, §1346, Skilling maintains, is unconstitutionally vague. Alternatively, he contends that his conduct does not fall within the statute’s compass. A To place Skilling’s constitutional challenge in context, we first review the origin and su bsequent application of the honest-services doctrine. 1 Enacted in 1872, the original mail-fraud pro vision, the predecessor of the m o d e rn-day mail- and wire -fraud laws, proscribed, without fur t her elaboration, use of the mails to advance “a ny scheme or artifice to defraud.” See McNally
v. United S t ates , 483 U. S. 350, 356 (1987). In 1909, Congress amen ded the statute to prohibit, as itdoes today , “any schem e or artifice to defraud, or for obtaining money or propertyby mean s of fa lse o r fraudulent pretenses, repr esen ta ti ons, or promises .” §1341 (emphas is added); s ee id. , at 357–358. Emphasizing Congress’ disju n ctive phra sing, the Courts of App e als, one after the other, interpret e d the term “s cheme or artifice to de fraud” to include depri

vations not only of money or prope rty, but also of intangible rights. In an opinion credited with first presenting the intangi

­

—————— prejudice dueto pretri al publicity. See, e. g., Mu ’Mi n , 500 U. S. 41 5; Pattonv. Yo u n t , 467 U. S. 102 5 (1 984); Murphyv. Florida , 421 U. S. 794 (1 97 5). News c o v e r a g e of c iv il an d cr imin al tr ial s of pu blicin ter e st conve y s to soc i ety at large how our ju stic e sy stem o p er at es. And itis a premise of that syste mtha tjurors will set aside their preconception s when they ent e r the courtro o m and de cide cases based o nthe evidence pres ent e d. Tria l j u dges genera lly t a ke care s ot o ins t r u ctj u rors , a n d th e Distr i c tCou r t did ju st th at inth is c a se. App. 1026a.35 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### ble-rights theory, Shushan v. Uni t ed S t ates , 1 17 F. 2d 11 0 (1941), the Fifth Circuit reviewed the mail-fraud prosecution of apublic official who alleged l y accepted bribes fro m entrepreneurs in exchange for urging city action benefic i al to the bribe payers. “I t is not t r u e that beca use the [cit y] was to ma ke and did make a saving by the operations there could not have been an intent to defraud,” the Court of Appeals maintained. Id., at 119. “A sch e me to get a public contract on more favorable t e rms than would like l y be got othe rwise by b r ibing a pu blic official, ” the cou r t observed, “would not only be a plan to committhe crime of bribery, but would also be a scheme to defraud the public.” Id., at 115. The Fifth Circuit’s opinion in Sh ushanstim ulated the development of an “honest-services” doctrine. Unlike fraud in which the victim’s loss of money or property supplied the defendant’s gain, wi t hone the mirror image of the other, see, e.g., United S t a t es v. Sta r r , 816 F. 2d 9 4 , 101 (CA2 1 987), the h o nest-services theory targeted corruption tha tlacked si milar symmetry. Wh ile the offender profited, th e betrayedpart y su ffered no deprivation of money or property; instead, a third party, who had not been deceived, provide dthe enrichment. For example, if a city mayor (the offender) accepted a bribe from a third party in exchange for awarding that party acity contra ct, yet the con tractterms were the s a me as any thatcould have been negotiated at arm ’ s length, the city (the betrayed par t y) would suffer no tangible loss. Cf. McNally , 483 U. S., a t360. Eve nif the sch e me occasioned a mone y or property gain for t h e betrayed par t y, courts reasoned , actionable harm lay in the denial of that party’s right to the offende r ’s “honest services.” See, e.g., United S t ates v. Dixon , 536 F. 2d 1388, 1400 (CA2 1976). “Most often these case s .
. . invo lv ed bribery of public officials,” United S t a t es v. Bohonus , 628 F. 2d 1167, 1171 (CA9 1980 ), but cou rts also recognized private-sector36 SKILLING v. UNITED STAT ES Opinion of theCourt 

### honest-services fraud. In per haps the earlies tapplicatio n of the theory to p r ivate actors, aDistrict Cour t, reviewing a bribery scheme, expla i ned: “When one tampers with [the employer-emplo yee] relationship f o r the purpose of causi n g the employee to breach his duty [to his employer,] he in effe ct is defrauding the employerof a lawfu lright. The actual deception that is practised is in the continued representation o f the emplo y ee to the employer that he i s honest and loyal to the employer’s interests.” United Sta t esv. Pr octer & Ga mble Co. , 4 7 F. Supp. 676, 678 (Mass. 1942 ). Over time, “[a]n increa s ing number of courts” recognized that “a recr eant employee”—p ublic or private—“c[ould] be prosecuted under [the mail-fraudstatute] if he breache[d] his allegian ce to his employer by accepting b r ibes or kickbacks in th e course of his employ ment,” Uni t ed S t atesv. McNeive , 536 F. 2d 1245, 1249 ( CA8 1976); by 1982, all Courts of Appeals had embraced the honest-s ervices theory of fraud, H u rson, Limiting the FederalMail Frau d Statute—A Legislative Approach , 20 Am. Crim. L. Rev. 423, 456 (1983). 35 

### 2 In 1987, this Court, in McNallyv. United States , stopped the development of the intangible-rights doctrin e in its tracks. McNallyinvolved a state offi cer who, in selecting Kentucky’s i n surance agent, arran g ed to pro c ure a share of the agent’s commissions via kickbacks paid to

——————

35 In a ddition to upholding ho nes t -s ervices pros ecutions , courts a l so increasingly approved use of the mai l -fra u d s t a t ut e t o a t t a ck corrupt ion that deprivedvictims of other kind s of intangible rights, including election fraud and priv acy violations. See, e.g. , Clevelandv. United States , 531 U. S. 12, 18, n

. 2 (200 0); McNallyv. United St ates , 483 U. S. 350, 36 2– 36 4, an d n n
. 1–4 (1 987) (S TE VENS , J., dis s e nting)

.37 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### companies the official partially co ntrolled. 483 U. S., at 360. The prosecutor did not cha r ge that, “in the absence of the alleged scheme[,] the Common wealth would have paid a lower pre m ium or secured bette r insurance

. ” Ibid. I n stead, the prosecutor maintained that the k i ckbac k scheme “defraud[ed] the citizens and govern ment of Ke n tucky of th eir right to have the Commonwealth’s affairs conducted h o nestly.” Id ., at 353. We held th at the scheme did not qualify as mail fraud. “Rather th an constru[ing] the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good govern ment for local and stat e officials,” we read the statute “as limited in scope to the protection of property rights.” Id. , at 360. “If Congress desires to go further,” we stated, “it must speak more clearly.” Ibid

. 3 Congress responded s w iftly. The foll owing year, it enacted a new statut e “specifically to cover one of the ‘intangible rights’ tha tlower co urts had protected .

. . prior to McNally :‘the intangible right of hones tservices.’ ” Clevel andv. United S t ates , 531 U. S. 12, 19–2 0 (2000). I n full, the honest-services statute stated: “For the p u rposes of th[e] cha p ter [of th e United States Code that pro h ibits, inter alia , mai lfraud, §1341, andwire fraud, §1343], t h e term ‘scheme or artifice to defraud’ in cludes a scheme or artifice todeprive another of the intangible right of honest services.” §1346. B Congress, Skilling charges, reacted quickly but not clearly: He asserts that §1346 is u n constitutionally vague. To satisfy due process, “a penal statute [must] define the criminal offense [1] with suffici ent definitenes s that ordi­38 SKILLING v. UNITED STAT ES Opinion of theCourt 

### nary peopl e can understand w hat conduct is prohibited and [2] in a manner that does not encourage arbitrary an d discriminatory enforce ment.” Ko lenderv. La w s on , 461 U. S. 352, 357 (1983). The void-for-vaguen ess doctrine embraces these requir e ments. According to Skilling, §1346 meet s neither of the two due process essentials. First, the phrase “th e intangible right of honest services,” he contends, does not adequately define what behavior it bars. Brief for Petitioner 38–39. Second, he alleges, §1346’s “standardless s w eep allow s policemen, prosecutors, and juries to pursue their person al predilections,” thereby “facilit at[ing] opportunistic and arbitrary prosecutions. ” Id., at44(quoting Kolender , 4 61 U. S., at 35 8). In urging i n validation of §1346, Skilling swi m s against our case law’s cu rrent , which req u ires us, if we can, to construe, not condemn, Congress’ enactments. See, e.g., Civil Servi c e Comm’nv. Let t e r C a rr ie rs , 413 U. S. 548, 57 1 (1973). See also United Statesv. National Dairy Products Corp. , 372 U. S. 29, 32 (1963) (stressing, in r e sponse to a vagueness challenge, “[t]he strong presumptive validity that attach es to anAct of Congress”). Alert to §1346’s potential breadth, the Courts of Appeals have divided on how best to interpret t h e statute. 36

### Uniformly, however , they have d e clined to throw out th e statute as irremedia­

——————

36 Cou r ts h av e disag r eed ab o u t wh eth e r§1346 pr osec u t io n s mu stbe based on a violation of state law, compare, e. g., Un i t edSt a t e s v. Brum

ley , 116 F. 3d 728, 734–7 35 (CA5 19 97) (enban c ) , with , e.g
. , United States v. Wey h rauch , 548 F. 3d 1237, 12 4 5–1 24 6 (CA9 200 8), v a c a ted
an d r e man d ed , post , p. ___; whether a defendant must contemplate th at the victim suffer economic harm, compare, e. g., Un i t ed S t a t e s v. Su nDiamond Gro w ers of Cal. , 138 F. 3d 9 61, 97 3 (CADC 1 998), with , e.g., United Stat esv. Black , 530 F. 3d 596, 6 0 0 –60 2 (CA 7 2 0 0 8), v a c a ted an d
rem a nded, post , p. ___; and whether the d e fe ndant must act in pursuit of private gain, compare, e. g., Uni t ed Sta t esv. Bloom , 149 F. 3d 6 4 9 , 6 5 5 (C A7 19 98), wi t h , e.g. , United Stat esv. Panarella , 27 7 F. 3d 67 8, 692 (C A3 20 02 ).39 Cite as: 56 1 U

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### bly vague. 37 

### We agree that §1346 should be construed ra ther tha n invalidated. First, we look to the doctrine developed in pre- McN a lly cases in an endeavor to ascerta in the meaning of the p h rase “the intangible right of honest services.” Second, to preserve what Congress certainly intended t h e statute to c o ver, we pa re thatbody of precedent down to its core: In the main, the pre- McNally cases involved fraudulent schemes to deprive another of honest services through bri b es or kickbacks suppl ied by a third party wh o had not be en deceived. Confin ed to thes e paramount applications, §1346 presents no vagueness problem. 1 There is no doubt that Congress intended §1346 to refer to and incorporate the honest -services doctri ne recognized in Court of Appeals’ decisions before McNallyderailed the intangible-rights theory of fraud

. See Brief for Petitioner 39; Brief for United States 37–38; post , a t2, 8 (S CAL IA 

### , J., concurring in part and concurri ng in judgment). Congres s enacted §1 346 on the heels of McNallyand drafted the statute using that decision’s term inology. See 483 U. S., at 355 (“intangible righ[t]”); id., at 362 (S TEVENS 

### , J., dissenting) (“r i ght to .

. . honest services”). 38

### A s t h e S e c o n d

——————

37 See, e. g. , U n it ed Stat es v. Ry b i c k i , 354 F. 3d 12 4, 132 ( CA2 2 0 0 3 ) (enban c ) ; Un i t ed Stat esv. Hausmann , 345 F. 3d 952, 958 (C A7 2 0 0 3 ); United Sta t es v. Welc h , 327 F. 3d 108 1, 11 09, n

. 29 (CA1 0 20 03); United Statesv. Fr ega , 179 F. 3d7 93, 8 03 (C A9 199 9); Brumley , 116 F. 3d, a t 732 –7 33; United Stat es v. F rost , 125 F. 3d 346, 37 0– 37 2 (CA6 1 997); United Stat esv. Waymer , 5 5 F. 3d 5 64, 5 68– 56 9 (CA 1 1 199 5); United Statesv. B r yan , 58 F. 3d 933, 941 (CA 419 95). 38 Al t h ough ve rb a lform ulat ions va ri ed slig htly, the word s employed bythe Cour ts of Appeal s pr i o rto McNally des crib e d t h e s a m econcept: “honest services,” e.g., Uni t ed State sv. Bruno , 809 F. 2d 10 97, 1 1 0 5 (CA5 19 87); “h on est an d fa it h f u lserv ic es,” e.g. , United Statesv. Brown , 540 F. 2d 3 64, 37 4 (C A8 19 7 6 ); an d “f aith f u l an d h o n e st serv ic es,” e.g. , United States v. Di ggs , 613 F. 2d 988, 998 (CADC 19 79).40 SKILLING v. UNITED STAT ES Opinion of theCourt 

### Circuit observed in its leading analysis of §134 6: “The definite article ‘the’ sugges t s that ‘intangible right of honest services’ had a specific meaning to Congress when it en acted the statute—Congress was recriminalizing mail- and wire-fraud schemes to deprive others of that‘i ntangible right of honest services,’ which had been protected before McNally , not all intangib le rights of hone st services whatever they might be th ought to be.” United S t atesv. Rybicki , 354 F. 3d 124, 137–138 (2003) (en ban c). 39 

### 2 Satisfied th at Congres s , by enacting §1346, “meant to reinstate the body of pre- McNallyhonest-s ervices law,” post , at 8 (opinion of S CALI A 

### , J.), we have s u rveyed th at
c a s e l a w
. S e e infra , at 42–44, 46. In parsing the Courts ofAppeals decisions, we acknowledge that Skilling’s vagueness challenge has fo rce, for ho nest-services decisions preceding McNallywere not models of clar ity or consistency. See Brief for Petitioner 39– 42 (describing divisions of opini o ns)

. See al so post , at 3–7 (opinion of S CALIA 

### , J.). While the honest-services cases preceding M cNally dom i

nantly and consistently applie d th e fraud sta t ute to brib

ery and kickback sche mes—schemes that were the basis of most honest-services prosecutions—there was consider

able disarray over the statut e’s application to conduct outside that core ca teg o ry. In ligh tof this disarray, Skill

ing urges u s , as he urged the Fifth Circuit, to invalidate the statute in toto

. Bri e f for Petitioner 48 (Section 1346 “is

——————

39 We cons idere dasim i la r Court

- Congres sint e rpla y in McDerm ott Int’l, I n c. v. Wilander , 498 U. S. 337 (19 91), wh ic hinvolv ed th e in ter

pretation of the term “seaman” in th e Jon e s Ac t, 46 U. S. C. App. §688 (2000 ed.). T h e Act, we re c o gnized, “r espond[ed] dir e c t lyto” our dec i

sion in The Osceola , 189 U. S. 158 (19 03), an d “ado pt[ed] with ou t fur t herelaboration the ter mused in” th at c a se, so we “as s ume[d] t h at th e Jon e s Ac t u s e[d] ‘ s eama n ’ in th e same way
. ” 498 U. S., at 342.41 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### intolerably and uncons t itutionally vague.”); Brief of De

fendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21 (“[ S ]ection 1346 should b e invalidated as unlawfully vague on its face.”). It has long been our practi ce, however, before striking a federal statute as impermiss ibly vague, to consid er whether th e prescription is amenable to a limiting construction. See, e.g., H ooperv. California , 155 U. S. 648, 657 (1895) (“The elementary rule is that eve r y rea sonable constru c tio nmust be r e sorted to, in order to s a ve a statut e from unconstitutionality.” (emp ha sis added)). See also Boosv. Barr y , 485 U. S. 312, 330–331 (1988); Schneider v. Smith , 390 U. S. 17, 26 (1968). 40

### We have accordingl y instructed “the federal courts .

. . to avoid constitutional difficulties by [adopting a limiting interpretation] if such a constructio nis fairly p o ssible.” Boos , 485 U. S., at 331; see UnitedStatesv. Harri ss , 347 U. S. 612, 618 (1954) (“[I ]f

——————

40 “ T his ca rdina lprinciple ha s it s roots in Chief Justice Marshall’s opinion for the Court in Mu rrayv. Th eCh a r m i n g

Be t s y , 2 Cr an c h64, 118 (1 80 4), a n d h a s forso lon gbeenapplied byth is Cou r t th at it is bey o n ddebat e.” Edward J. DeBartolo Corp. v. Flori d a Gulf Coast Building & Co nstr. T r ades C o uncil , 485 U. S. 568, 57 5 (1 988). See, e.g. , New Yorkv. F erb er , 458 U. S. 747, 7 69, n

. 24 (19 82); NLRBv. Catholic Bishop of Chicago , 440 U. S. 49 0, 5 0 0

– 5 01 ( 197 9); Un ited States v. Thirty- sev en P h otograp h s , 4 02 U. S. 36 3, 368–3 70 (1 971 ); Machinistsv. Stree t , 367 U. S. 740, 7 49– 750 ( 196 1); United S t a t e s v. Rumely , 345 U. S. 41, 45 (195 3); Win t ers v. New York , 333 U. S. 507, 517 (1 94 8 ) ; Crowell v. Benson , 285 U. S. 22, 62 ( 1 9 32); Lucas v. Alexande r , 279 U. S. 573, 577 (192 9); Richm o nd Scre w A n chor Co. v. Un ited S t ates , 275 U. S. 331, 34 6 (1928); Pana ma R. Co. v. John son , 264 U. S. 375, 39 0 (192 4); United States ex rel

. Attorn ey Gen eral v. De lawar e& Hu ds on Co. , 213 U. S. 366, 4 07– 40 8 (190 9); United Statesv. Coombs , 12 Pet. 7 2 , 76 ( 183 8) ( S to r y , J.); Parso nsv. Bedford , 3 Pe t. 43 3, 4 48– 44 9 (1 830) (Story, J.). Cf. Chaplinskyv. New Hampshire , 315 U. S. 568, 57 3 (194 2 ) (sta tute made it c r i minal to addr ess “ a nyoffensiv e, der i siv e , orannoying wo rd” to any person in apublic place; vagueness ob viated byst atec o ur t c o nstr uction of the st atute to c o v e ronlywor d s hav i ng“a dir e c t tendency to cause acts of violence” by the addressee (internal quotatio n mar k s omit ted)).42 SKILLING v. UNITED STAT ES Opinion of theCourt

### the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struc kdo wn as va gue .
. . . Andif this gen e ral class of offenses can be made constituti onally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that constructio n .”). Arguing against any limiting constructio n , Skilling contends that it is impossible t o identify a salvageable honest-services core; “the pre- McNally caselaw,” he asserts, “is a hodgepodge of oft-conflicting holdings” that are “hopelesslyunclear.” Brief for Petitioner 39 (some capitalization and italics o m itted). W e have rejected an argu

ment of the same tenorbefore. In Civil Service Comm’nv. LetterCa rr iers , federal employees challenged a provision of the Hatch Act that incorporatedearlier decisions of theUnited States Civil Service Commission enforcing a similar law. “[T]he several thousand adjudication s of the Civi l Service Co mmission,” the employees maintai n ed, were “an impenetrable jungle”—“undiscoverable, incons istent, [and] incapable of yielding any meaningful rules to govern present or future conduct.” 413 U. S., at 5 71. Mindful that “ourt a sk [ w a]s n o t to destro y the Ac t if we c[ould], but to construe it,” we held that “the rules that had evolved ove rthe years from repe ated adjudications were subject to sufficiently clear and summary stat ement.” Id. , at 571–572. A similar observation may be made here. Although some applications of the pre- McNally honest-services doctrine oc casioned disagreement among th e Courts o f Appeals, th ese cases do not cloud the doctrin e ’s solid core: The “vast majority” of the honest-services cases involv e d offenders who, in vio l ation of a fiduciary dut y , participate d in bribery or kickba ck schemes. United S t a t es v. Runnels , 833 F. 2d 1183, 1187 (CA6 1987); see Brief for United43 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### States 42, and n. 4 (ci t ing dozens of examples). 41 

### Indeed, the McNallycase itsel f , which spurred Congress to ena c t §1346, presented a paradigmatic kickback fact pattern

. 483 U. S., a t352–353, 360. Congress’ reversal of McNally and reinstatement of the honest-services doctrine, we conclude, can and should be sa lvaged by confining its scope to the core pre- McNallyappl ications. As already noted, supra, at 34–3 6, the honest-services doctrine had its genesis in prosecutions involving briber y allegations. See Shus han , 117 F. 2d, at 115 (public sec

tor); Procter & Gambl eCo. , 47 F. Supp., at 678 (private sector). See also United Statesv. Orsbu r n , 525 F. 3d 54 3 , 546 (CA7 2 008). Bothbefore McNally and after §1346’s enactment, Courts of Appeal s described schemes involving bribes or kickba cks as “core .

. . honest services fra u d precedents,” United Statesv. Czu b inski , 106 F. 3d 1069, 1077 (CA1 1997); “paradigm ca se[s],” United Sta t esv. deVegter , 198 F. 3d 1324, 1327–1 328 (CA11 1999); “[t]he most obvious form of honest services fraud,” United States
v. Car b o , 5 72 F. 3d 11 2, 115 (CA3 2009); “core misconduct covered bythe statu t e,” United Sta t es v. Urciuoli , 5 13 F. 3d 290, 294 (CA1 2008); “most [of the] honest services cases,” United S t a t es v. Sorich , 5 23 F. 3d 702, 707 (CA7 2008); “typi cal,” United Statesv. Brown , 540 F. 2d 364, 374 (CA8 1 976); “clear-cut,” United St at esv. Mandel , 59 1 F. 2d 1347, 1363 (CA4 1979); and “uniformly

. . .

——————

41 J US TI CE S CALI A emphasize s divisions in the Courts of Appeal s regarding the source and sco p e of fiduciary duties. Post , at 3– 5. Bu t t h es e deba t e s were ra re in b r ib e a n d kickback cases. The existence of a fiducia r y rela t i ons h ip, unde ra n y defi nition of that ter m , was usuall y beyond dispute; examples includ e public official-public, see, e.g
. , United Statesv. Man d el , 591 F. 2d 134 7 (C A4 1 979); em ploy ee-employ er , see, e.g
. , United Statesv. Bohonus , 628 F. 2d 116 7 (C A9 19 80); an d u n i o n official-union members, see, e.g
. , Unit ed States v. Pri c e , 788 F. 2d 2 3 4 (CA4 19 86). See g e n e r a lly Chiarellav. United States , 445 U. S. 22 2, 233 ( 1 9 80) (n otin gth e “est abli s h e d doc t r i n eth at [a f i du c i ar y] du ty arises from a s p ecific relati onship between two parties”).44 SKILLING v. UNITED STAT ES Opinion of theCourt 

### cover[ed],” United S t a t esv. Pa rad i es , 98 F. 3d 1266, 1283,
n. 30 (CA1 1 1996). See also Tr. of Oral Arg. 43 (counsel for the Government) (“[T]he bulk of pre- McNallyhonest services cases” entail ed bribes or k i ckback s ); Brief for Petitioner 49 (“Bribes and kickb a cks were thepara digm [pre- McNally ] cases,” constituting “[t]he overwhelming majority of prosecutions for honestservices fraud.”). In view of this history, th ere is no doubt tha tCongres s intended §1346 to reach at lea s tbribes and kickbacks. Reading th e statute to proscribe a wider range of offens ive conduct, we ack n owle dge, would raise the due proce s s concerns underlying th e vagueness doctrine. 42 

### To preserve the statute without transgressing constitu tional limita

tions, we now hold that §1346 criminalizes onlythe bribeand-kickback core of th e pre- McNally case law. 43

——————

42 Apprised that a broader reading of §1346 could render the statute im perm iss ibly va gue, C o ngres s , we b e lieve, wo uld h ave dra w n t h e h o n e st-serv i c e s lin e, as we do n o w, at br iber yan d kickbac k sc h e mes. Cf. Levinv. Com m erce Ene r g

y, Inc

. , 560 U. S. ___, ___ (201 0) (sli p op ., at 1 1 ) (“[C]ou r ts mayat te mpt .

. . to implement whatthe legi slatu r e would have willed had itbeen appr ise dof the cons titutional infirmity .”); United Statesv. Booker , 543 U. S

. 220, 2 46 ( 2 0 05) (“We seek to determine what ‘Congress would have intended’ in light of the Court’s
c o nstitutional holding

. ”).

43 J US TI CE S CALI A cha r ges t h a tour cons t r uct i onof §134 6 i s “n ot in ter

pretation but invention.” Po s t , at 8. Statin gth at h e“k n o w[s] of n o precedent for .

. . ‘paring do wn’ ” the pr e- McNallyca s ela w t o it s core, ibid. , he c o ntends thatthe Cour t today “ w ield[s] apo werwe longag o abjured: the power to define new federal c r imes ,” post , at 1. See a l so , e.g ., post , at 9, 10, 1 1

. A s n o ted supra , a t41 –4 2 , and n. 4 0 , ca ses “par ingdown” feder a l s t atut es to av oi d constitutional shoals are legion. These cases recognize that the Court do es not legislate , but ins t ea d resp ect s th e le gislat ure , b ypres erving as t atute through alimiting inter p r e tation. See United Statesv. Lani er , 520 U. S. 259, 2 6 7

– 2 68,
n
. 6 (1997) (Th i s Cou r t does n o t “c r e ate a c o mmonlaw cr ime” byadopt

ing a“ n a rro w[ing] co ns t r u[ct ion].” (interna l quotation marks omitted)) ; suprathis pa ge, n. 4 2

. Given tha tthe Courts of Appea l s uniformly
r e c o gn ized br iber yan d kickbac k sc h e mes as h o n e st-s erv i c e s fr au d befor e McNall y , 483 U. S. 350, an d th at th ese sc h e mes c o mposed th e45 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### 3 The Government urges us to go further by locating within §1346’s compass another category of proscribed conduct: “u ndisclosed self-dealing by a publ ic official or private employee— i.e. , the takingof official action by the employee t hat furthers his ow n undisclosed financial interests while purporting to act in the inter e sts of those to whom he owes a fiduciary duty.” Id. , at 4 3–44. “[T]h e theory of li ability in McNallyitself was nondisclosure of a conflicting financial in terest,” the Government observes , and “Congr ess clearly intended to revive th[a t] nondisclosure theory

. ” Id., at 44. Moreover, “[a]lth o ugh not as numerous as the bribery and kickback cases,” the Government asserts, “the pre- McN a llycases involving undisclosed self- d ealing were abundant.” Ibid. Neither of these contentions withstands close inspection. McNally , as we h a ve already observed, supra , at 36– 37, 43, involved a classic kickba ck scheme: A public official, in exchange for routing Ken t ucky’s insurance bus iness through a middleman company, arranged for tha t company to share its commission s with entiti es in which the official held an interest. 483 U. S., at 35 2–353, 360. This was no mere fail ure to di sclose a conflict of interest; rather, the official conspired wit ha third partyso th at both would profit fro m wealth generated by public contracts. See id. , at 352 –353. Rea d ing §1346 to proscribe bribes and kickba cks

— and nothing more—satisfies Con­

—————— lion ’ s sh ar e of h o n e st-serv i c e s c a ses, l i mi t i n g§1346 to t h ese h e ar tlan d applica t ions i s surely “fa i rly possi ble.” Boos v. Barry , 485 U. S. 3 1 2 , 331 (1 98 8); c f

. Clarkv. Mar t inez , 543 U. S. 371, 38 0 (2 005) (opin i onof the Cour t byS CALI A , J

. ) (when a d opting alimiting cons truction, “[t]he lowest c o mmo n denominato r , as itwer e , must g o v e r n”). So c o nstr ued, the statute is not unc o nstitutionallyv a g u e. See inf r a , at 47–4 8; post , a t 8. On lybyt a kin ga wr ec kin gballto a sta t u t e th a tc a nbe salv ag e d t h rough area s onab l e na rrow i ng int e rpre ta tion would we act out of step with precedent.46 SKILLING v. UNITED STAT ES Opinion of theCourt 

### gress’ undoubted aim to reverse McNallyon its facts. Nor are we persuaded that the pre- McNallyconflict-ofinterest cas e s constitut e core appl ications of the honestservices doctrine. Although th e Courts of Appeals upheldhonest-services convictions for “some schemes of nondisclosure and concealment of material information,” Mandel , 591 F. 2d, at 1361, they reached no consensus on which sche mes qualifi e d. In light of the relative infrequency of conflict-of-in t erest prose c utions in comparison to bribery andkickba ck c harges, and the intercircuit inconsistencies they produced, we con c lude that a reasonable limiting construction of §1346 m u st exclude this amorphous category of cases. Further dis p elling doub t on this point is th e familiar principle th at “ambigui ty concerning the ambi t of criminal statutes should be re s o lved in fav o r of l e nity.” Clevelan d , 531 U. S., at 25 (quoting Rewisv. United S t a t es , 401 U. S. 808, 812 (1 971)). “This interpretive guide is especiall y appropriate in construing [§1346] because .

. . mail [an d wire] fraud [are] predicate offense[ s] under [the Rack eteer Influenced and Corru pt Organizations Act], 18 U. S. C. §1961(1) (1994 ed., Su pp. IV), an d the money launderin g statute, §1956(c)(7)(A).” Clevel a n d , 531 U. S., at 25

. Holding th at honest-services fra u d does not encompass conduct mo re wide-ran ging than the paradigmatic cases of bribes andkickbacks, we resi stthe Government’s less constrained construc t ion absent Congress’ c l ear instruc

tion otherwise. E.g., United S t a t esv. Universal C. I. T. Credi tCorp

. , 344 U. S. 218, 221–22 2 (1952). In sum, ou r constructi on of §1346“establish[ es] a uniform national standard, define[s] honest services wi th clarity, rea c h[es] only seriously culpable conduct, and accomplish[es] Congress’s goal of ‘overrulin g’ M cNally .” Brief for Albert W. Alschuler as Amicus Cu riaein Wey

hrauchv. United S t a t es , O. T. 20 09, No. 08– 1196, pp. 28– 29. “If Co ngress desires to go f u rther,” we reiterate, “it47 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### must speak more clearly thanit ha s.” McNally , 483 U. S. , at 360. 44 

### 4 Interpretedto encompass only bribery and kic kbac k schemes, §1346 is not unconstitutionally vague. Recall that the v o id-for-vagu eness doctrine addresses concerns about (1) fa ir notice and (2) arbitrary and dis criminatory prosecutions. See Kolender , 461 U. S., at 35 7. A prohibition on fra u dulently depriving another of one’s hone s t services by accepting bribes or k i ckback s does not present a problem o neither score.As to fair notice, “whatever the school of thought concerning the scope and meaning of ” §1346, ithas always been “as plain as a pikestaff that” bribes and kickbacks constitute honest-services fraud, Williams v. United Sta t es , 341 U. S. 97, 101 (1951), and the statute’s mens rea requiremen tfurther blunts any notice concern, see, e.g., Scre wsv. United S t a t es , 325 U. S. 91, 101–104 (1945) (plurality opinion). See also Broadrickv. Ok lahoma , 413 U. S. 601, 6 08 (1973) (“[E]ven if th e outermost boundaries

——————

44 If Congres s were t o t a ke up t h e ent e rpris eof crim i na lizing “ undis

closed self-de a ling by a public offi cial or private empl oyee,” Brief fo r U n i t e dS t a t e s 4 3 , i tw o u l dh av e to employ stand a rds of sufficien t definiteness a n d specificity to ove rcome due process conce r ns. The Government proposes a standard thatprohibits the “taking of offici al action by the employee th at furthe rs his own undis clos ed fina ncia l inter e sts whil e pur p or tingto ac t inthe i n ter e sts of th ose to whom he owes a fidu c i ar ydu ty ,” so lon gas the employee acts with a specifi c intent to decei v e and the undisclosedconduct could influ e nce the victim to c h an g eits beh av i or
. Id ., at 4 3–4 4. S ee also id ., at40– 41. Th at formula t ion, h o wever , leav es ma ny q u es t i ons una ns were d. How dire ct or significant does the conflicting fi nancial interes th ave to be? T o what extent does the offici al actionhav et o furt her th a tint e res tin
o r d e rt oa m o u n tt o f r a u d ? T o w h o ms h o u l dt h ed i s c l o s u r eb em a d ea n d what information should it convey? T h ese questions and others call for par t ic ularc a r ein attemp tingto for m ulate an adequate c r i minal pr ohibition in this c o ntex t.48 SKILLING v. UNITED STAT ES Opinion of theCourt 

### of [a statute are] imprecise, any such uncerta inty has little relevance

. . . where appell ants’ conduct falls squarely within the ‘hard cor e ’ of the statute’s pr oscriptions.”)

. Today’s decision clarifi e s that no other misconduct fall s within §1346’s province

. See United St at esv. Lanier , 520 U. S. 259, 266 (1997) (“[C]larity at the requisite level may be suppliedby judicialgloss on a notherwise uncertain statute.”). As to a rbitrary prosecutions , we perceive no significant risk that the honest-s ervices stat ute, as we interpret i t today, will be stretched out of shape. Its prohibition on bribes and kickba cks draws co nte n t not only from the preMcNallyca se law, but also from federal statutes proscribing—and defining—similar crimes. See, e.g., 18 U. S. C. §§201(b), 6 66(a)(2); 41 U. S. C. §52(2) (“The term ‘kickback’ mea n s any money, fee, c o mmission , credit, gift, gratuity, thing of value, or compensationof any k i nd which is p r ovided, dir e ctly or in directly, to [enumerated persons] fo r the purpose of improperly obtaining or rewarding fa vorable treatment in connection with [enumerated circu m stances].”). 45 

### See also, e.g., United S t ates v. Ganim , 510 F. 3d 134, 147–149 (CA2 2007) (Sotomayor, J.) (reviewing honest-services conviction involvin g bribery in light of ele m ents of bribery under other federal statutes); United Sta t esv. Whitfi eld , 590 F. 3d 325, 352–353 (CA5 2009); United Sta t es v. Kemp , 500 F. 3d 257, 281–28 6 (CA3 2007). A criminal defend ant who participated in a bribery or kickback scheme, in short, ca nnot tenably complain about prosecution under §1346 on vagueness grounds.

——————

45 Ove r lap with other federal s t atutesdoes not render §1346 superfluous. The principal federalbribery st atute, §201, for ex am ple, genera lly applie s on lyt o feder a l pu bl icoffic i als, so §134 6’ s appli c ationto s t a t e a n d loca l corrupt ion a n d t o priva t e-s e ct or fra u d rea c h e s m i s c onduct tha tmight otherwis e go unp unis h ed.49 Cite as: 56 1 U

. S. ____ (2010) Opinion of theCourt 

### C It remains to deter m ine whether Skilling’s conduct violated §1346. Skilling’s hone st-services pro s ecution, the Government concedes, was not “ p rototypical

. ” Brief fo r United States 49. The Government charged Skilling with conspiring to defraud Enron’s shareholders by misrepresenting the company’s fiscal health, therebyartificially inflating its stockprice. It was the Government’s theory at trial that Skilling “profite d from the fraudulent scheme

. . . through the receipt of salary and bonuses, .

. . and through the sale of approximately $200 milli on in Enron stock, which netted him $89 milli on.” Id., at 51. The Govern ment did n o t, at any time, allege that Skill

ing solicited or accepted side payments from a third par t y in exchange for making thes e misrepresentations. See Record 413 28 (May 11, 2006 Letter from the Government to the District Court) (“[T]h e indictment does not al lege , and the government’s evidence did not show, that [Skilling] engage d in bribery.”). It is therefore clea r that, as we read §1346, Skilling did not co mmit honest-services fraud. Because the indictment alleged three objects of the conspiracy—ho nest-services wire fraud, money-or-property wire fraud, and securities fraud—Skilling’s conviction is flawed. See Yat e s v. Uni t edSta t es , 354 U. S. 29 8 (1957) (constitutional error occurs when a jury is instructed onalternative theories of guilt and returns a general verdict that may rest on a legally invalid theory). This determination, however, does not necessarily require reversal of the consp i racy con viction; we r e cently confirmed, in Hed g

pe thv. Pulido , 555 U. S. ___ (2008) (per curiam) , th at errors o f the Ya te s variety are subject to harmless-error analysi s
. The pa rties vigoro usly disput e whether th e error wa s harmless. Compar e Brief for United Sta t es 52 (“[A]ny juror who voted for convictio n based on [the honest-services theory] also would have found [Skilling] guilty of conspiri ng to commit securities50 SKILLING v. UNITED STAT ES Opinion of theCourt 

### fraud.”) wi th Reply Brief 30 (Th e Governm e nt “canno t show that the conspiracy convic t i on rested onlyon th e securities-fraud theory, rather tha nthe distinct, legallyflawed honest-services theory.”). We le ave this dispute f o r resolution on remand. 46 

### Whether potential reversal on the conspiracy cou n t touches any of Skilling’s other co nvictions is also an op en question. All of his c o nvictions, Skilling contends, hinged on the conspiracy coun t and, lik e dominoes, must fall if it falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, App. 1141a–1142a, but the F i fth Circuit had no occa sion to rule on it. That court may do so on remand. * * * For the for e going reasons, we affirm the Fift h Circuit ’s ruling on S k illing’s fair-trial argument, vacate its rulin g on his conspiracy con viction, and remand the case for proceedings consistent with this opinion.
It is so orde red.

——————

46 The Fifth Cir c uit a ppea r ed to prej udge th is is s u e, noting tha t , “if any of the three objects of S k illing’s conspiracy offers a legally insuffic i en t th eor y , ” it “mu s tse t a s i d e h i s c o n v ic tion .” 554 F. 3d, at 5 43. Th a t reasoning reli ed on the mistaken premise that Hedgpet hv. Pu lido , 5 55 U. S. ___ (2008) (per cu riam ) , gove rns onl yca s e s on colla t e ra l review. See 554 F. 3 d , at 543, n

. 10. Har m les s -er r o ran aly s is, we c l ar ify , applie s equ a l l yto c a ses ond i r e c ta ppea l

. Accordingl y, t h e Fift h Circu it , on remand, should take a fresh l ook a tt h e pa rt ies ’ ha rm les s - error ar g u men t s._________________

_________________ 1 Cite as: 56 1 U

. S. ____ (2010) Opinion of S CALI A , J. 

# SUPREME CO URT O F THE UNI TED STATES

No. 08–1 39 4


### JEFFREY K. SKILLING, P E TIT I ONER v. UNITE D STAT ES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Ju n e24, 2010 ] 

### J USTICE 

### S CALIA 

### , wi th whom J UST I CE 

### T HOMAS

### joins, and with whom J USTI CE 

### K ENNEDY 

### j o i n s e x c e p ta s t o P a r tI I I , concurring i npart and concurring i nthe judgm e nt. I agree with the Court that petitioner Jeffrey Skilling’s challenge to the impar t iality of hi s juryand t o the Distri ct Court’s con d uct of the voir direfails. I theref ore join Parts I and II of t h e Court’s opinion. I also agree that the decision uphold ing Skilling’s convictio nfor so-called “honestservices fraud” must b e reversed, but for a di fferent reason. In m yview, the specification in 18U. S. C. §1346 (2006 ed., Supp. II) tha t“scheme or artifice to defraud” i n the mail-fraud and wi re-fraud statutes, §§1 341 and 1343 (2006 ed.), includes “a scheme or artifice to deprive another of the intangible right of honest services,” is vague, and therefore violates the Due Pro c ess Clause of the Fifth Amendment. The Court strikes a pose of judicial humility in proclaiming that our task is “n ot to destroy the Act .

. . but to construe it,” an te , at 42 (i nternal quotation marks omitted). But in tran s forming th e prohibition of “honest

services fraud” into a prohibition of “bribery and kic k

backs” it is wielding a power we long ago abjured: th e power to de fine new federal crimes. See United S t a t esv. Hudson, 7 Cranch 32, 34 (1812).2 SKILLING v. UNITED STAT ES Opinion of S CALI A , J. 

### I A criminalstatute m u st clearly define the conduct it proscribes, see Grayne dv. City of Rockford , 408 U. S. 10 4, 108 (1972). A statute that is u n constitutionally vagu e cannot be s a ved by a more precise indictment, see Lan

zettav. Ne w Jers ey , 306 U. S. 451, 453 ( 1939), nor by judicial construction th at writes in specific cri teria that it s text does not contain, see United Sta t esv. Re ese , 92 U. S. 214, 219–221 (1876). Our cases have described vagu estatutes as failing “to provide a person of ordinary intelligence fair notice of what is prohibited, or [ a s being] s o standardless that [they] autho riz[e] or enco urag[e] seriously discriminatory e n forcement.” United S t ates v. Wil

liams , 553 U. S. 285, 304 (2008). Here, Skilling argues that §1346 fails to p r ovide fair notice and encourages arbitrary enforcement because it provides nodefinition of the right of honest services wh ose deprivation it prohibits

. Brief for Petitioner 38– 39, 42–44. In my view Skilling is correct. The Court maintains t hat “the intangible right of honest services ” means the right not to have one’s fiduciaries accept “b ribes or kickbacks.” It s first step in reaching that conclu sion is the assertion that the ph r a se refers t o “the doctrin e developed” in ca ses decided by lower federal courts priorto our decision in McNally v. Unit e dSt at es , 483 U. S. 350 (1987). Ante , at 39. I do n o t contest that. I agree that Congress used the novel phrase to adopt th e lower-court case law that had been dis a pproved by McNally

—w hat the C o urt calls “ t he pre- McNally honestservices doctrine,” ante, at 42. The problemis that that doctrine pr ovides no “ascertaina b le standard of guilt ,” United Sta t es v. L. Cohen Grocery Co. , 255 U. S. 81, 89 (1921), and certainly is not limited to “bri bes or kickbacks.” Investigation into the meaning of “the pre- McNally honest-services doctrine” mi ghtlogically begin withCite as: 56 1 U

. S. ____ (2010) 3 Opinion of S CALI A , J. 

### McNallyitself, which rejected it. That case repudiated the many Court of Appeal s holdings that had e x panded th e meaning of “fraud” in the mail-fraud and wi re-fraud sta t

utes beyond deceptive schemes to obtain property. 48 3 U. S., at 36 0. If the re pudiated ca ses stood for a prohibition of “bribery and ki ckbac k s ,” o n e would h a ve expected those words to appearin the opinion’s description of the
cases. In fact, they do not. Not a tall

. Nor did McNally even provide a consi s tent defini tion of thepre-existing theory of fraud it rejected. Itreferred variou sly to a right of citizens “to have the [State]’s affairs conducted honestly,” id., at 353, to “honest and impartial government,” id., at 355, to “good government,” id., at 356, and “to have public officials perform their duties honestly,” id., at 358. It described prior case law as ho lding that “a public officia l owes a fiduciary du ty to the public, and misuse of his office for private gain is a fraud,” id., at 355. But the pre

- McNally C o urt of App e als opinions were not limited to f r aud by pu blic officials

. Some courts had held that those fiduciaries subject to the “honest services ” obligation included pri v ate individuals who merely participated inpublic dec i sions, see, e.g. , United St at esv. Gray , 790 F. 2d 129 0, 1295–12 96 (CA6 1986) (citing UnitedSta t es v. Ma rg i o t t a , 688 F. 2d 108 , 122 (CA2 1982)), and even private employ ees who ha d no role in public decisions, see, e.g. , Uni t edSta t esv. Lemire , 7 20 F. 2d 1327, 1335–1336 (CADC 198 3); UnitedSta t es v. Vo n Bar t a , 635 F. 2d 999, 1007 (CA2 1 980). Moreover, “to say that a ma n is a fiduciary only begins [the] analysis; it gives direction to further inqui ry. . . . What obligations does heowe as afidu ciary?” SEC v. Chene r y Corp. , 318 U. S. 80, 85–86 (1943 ). None of the “hon est services” cases, neither those pertaining to p ublic officials nor those pertaining to private employees, defined the nature and content of the fiduciaryduty cent r a l to the “fraud” offense. There was not even universal agre ement concerning th e4 SKILLING v. UNITED STAT ES Opinion of S CALI A , J.



### source of the fiduciary obligatio n—whether it must b e positive state or federal law, see, e.g. , United Statesv. Rabbitt , 583 F. 2d 101 4, 1026 (CA8 1978), o rmerely general principles, such as the “obligations of loyalty and fidelity” that inhere in th e “employment relationship,” Lemire , su pra , at 1336. The decision McNallyreversed had grounded the duty in genera l (not jurisdiction-specific) trust law, see Gray , supra , at 1294, a corp us jurisfes

tooned with various duties. See, e.g., Restatement (Second) of Trusts §§169–185 (1976). Another pre- McNally case referred to the gen e ral law of agency, Uni t ed Sta t esv. Ballard , 66 3 F. 2d 534, 543, n. 22 (CA5 1981), modified on other grou nds by 680 F. 2d 352 (1982), which imposes duties quite different from those of a trustee. 1 

### See Restatement (Second) of Agency §§3 77–398 (1957). This indete rminacy does not di sa ppear if on e assume s that the pre- McNally cases developed a federal, commonlaw fiduciary dut y ; the duty remained hopelessly undefined. Some courts described it in astou n dingly bro a d language. Blachlyv. UnitedS t ates, 380 F. 2d 665 (CA5 1967), loftily declared that “[l] aw puts its im primatur on the accepted moral standards and condemns conduct which fails to match t h e ‘reflection of moral uprightness , of fundamental honesty, fair pla y and right dealing in the general and business life of members of society.’ ” Id. , at 671 (quotin g Gr egoryv. United S t ates , 253 F. 2d 104, 109 (CA5 1958)). Other courts unhelpfully added that an y scheme “contraryto p ublic po licy” was also condemned by

——————

1 The Court is untroub led b ythes e divis i ons b e ca us e “thes edeb a t es were ra re in b r ib e a n d kickb a c k ca s e s , ” in whi c h “ [ t] h eexis t e nce of a fiducia r y rela t i ons h ip, unde ra n y defi nition of that ter m , was usuall y b e yond dis p ute,” ante , at 43, n

. 41. Th is misse s th e poin t. Th e Cour ts of Appea l s ma y have cons is tently found unla w ful the a ccepta n ce of a bribe or kickback by one or another so r to f fiduc i ar y , but theyhav enot cons is tently des crib e d (a s the s t a t ute does not) a n y te s tfor whois a fiduciary.5 Cite as: 56 1 U

. S. ____ (2010) Opinion of S CALI A , J. 

### the statute, United S t atesv. Bo honus , 628 F. 2d 1167, 1171 (CA9 1980). See also United Sta t esv. Mandel , 59 1 F. 2d 1347, 1361 (CA4 1979) (any scheme tha tis “contrary to public policy and conflicts with accepted standards of moral uprightness, fundamental honesty, f a ir play and right dealing”). Even opinions that did not indulge in such grandiloquence did not specify th e duty at i ssue beyon d loyalty or honesty, see, e.g., Von Barta , sup ra , at 1005 – 1006. Moreover, the demands of the duty we re said to b e greater for public officials than for priva t e employees, see, e.g., Lemire , supra , at 1337, n. 13; Ballard , supra , at 541,
n. 17, but in what respects (or b yhow mu ch) was never made clear. The indefiniteness of the fiduciary duty is not all. Many courts held that some je-ne-sais-quoi beyond a mere breach of fi duciary duty was needed to estab lish hon e stservices fraud. See, e. g., Von Barta , su pra , a t1006 (collecting cases); UnitedSta t es v. Ge orge , 477 F. 2d 508, 51 2 (CA7 1973). There was, unsurprisingly, some dispute about that, at least in the context of acts by persons owin g duties to th e public. S ee United Statesv. Pri c e, 788 F. 2d 234, 237 (CA4 1986). And even among those courts tha t did require something additio nal where a public official was involved, there was disagreement as to what the addition should be. Fo r example, i n United S t atesv. Bush , 522 F. 2d 641 (1975), the Seventh Circuit held that mate

rial misrepresentations andac tive conce a lment were enough, id., at 647–64 8. But in Rabbitt , 58 3 F. 2d 101 4, the Eighth Circuit held that actual harm to th e State was needed, id., at 1026. Similar disagreements occurre d with respect to privat e employees. Courts disputed whether the defendant must use his fid u ciary position for his own gain. Compare Lemire, sup ra , at 1335 (yes), with United S t a t esv. Bron

ston , 658 F. 2d 920, 9 26 (CA2 1 981) (no). One opinion upheld a mail-fraud conviction on the ground that the6 SKILLING v. UNITED STAT ES Opinion of S CALI A , J. 

### defendant’s “failure to disclose his receipt of kickbac ks an d consulting fees from [h is employer ’s] suppliers resulted i n a breach of his fiducia r y duties depriving his employer of his loyal an d honest services.” Un ited S t a t es v. Bryza , 52 2 F. 2d 414, 422 (CA7 1975). An other opinion, however, demanded more than an intentional failur e to disclos e : “There must be a failu re to disclose somethi n g which i n the k n owledge or contemplation o f the emplo y ee poses a n independen t business riskto the employer.” Lemire , 7 20 F. 2d, at 1 337. Othe r courts required that the victim suffer some loss, see, e. g
. , Ballard , supra , at 541–542—a proposition that, of cou r se, other courts reject ed, see, e.g. , UnitedSta t es v . Newman , 664 F. 2d 12, 2 0 (CA2 198 1); UnitedStates v. O’ Malley , 535 F. 2 d589, 592 (CA10 1976). The Court’s statement today that there was a deprivatio n of honest services even if “the sche me occasioned a money or property gainfor the betrayed party, ” ant e , at 35, is therefore true, except to the extent it is not. In short, th e first step in the Court’s analysis —holding that “ t he in tangible righ t of honest services” r e fers to “th e honest-services doctrine recogn ized in Courtof Appeals’ decisions before McNally ,” ante , at 39—is a ste p out of the fryingpan i n to the fire. The pre- M cNallycases provide no clear indication of what constitutes a denial of the right of honest services. The possibiliti e s range from any acti on that is contrary to pub lic policy or otherwise immoral, to only the disloyalty of a public off i cial or em ployee to h i s principal, t o only the secret use of a perpetra tor’s position of trust in order to harm whomev er he is beholden to. Th e duty probably did not have to be rooted in st ate law, bu t maybe it did. It might have been more demanding in the case of public officials, but perhaps not. At the time §1346 was enacte d there wa s no settled criterion for choosing among thes e options, f o r conclusively settling what was in7 Cite as: 56 1 U

. S. ____ (2010) Opinion of S CALI A , J. 

### and what was out. 2 

### II The Court is aware of all this. Itknows that adopting by reference “the pre- McNally honest-services doctrine,” ante , at 42, is adopting by reference nothing more precise than the referring term itself (“the intangible right of honest services”). Hence the deus ex machina:“[W]e pare that body of precedent down to its core,” ante , at 39. Since the honest-services doctrine “hadits genesis” in briber y prosecutions, and since several cases and counsel for Skilling referred to bri b ery andki ckback sche mes as “core” or “paradigm” or “typical” exam ples, or “[t]he most obvious form,” of honest-services fraud, ante , at 43 (internal quotation marks omitted), and since two cases andcounsel for the Govern ment say t hat they for m ed the “v ast majorit y , ” or “most” or at least “[t]he bulk” of honest-services cases, ante , at 42–44 (internal quotation marks omitted), THE REF ORE it must be the case that they are all Congress meant by its refere nce to the h o nest-services doctrine. Even if that conclusion fo l l owed from its p r emises, it would not suffice to el iminate thevagueness of the statute. It would solve (p erhaps) the indeterminacy of what acts constit u te a breach of the “honest services” obligation under the pre- McN a lly law. But it would not solve the most fundamental indeterminacy: the character of the “fiduciaryc a pacity” to which the bribery a n d kic kbac k

——————

2 Courts s i nce §1 3 4 6 ’ s ena c tment have fa red nob e tter, reprodu c ing some of the same di sputes that predate d McNally

. See, e.g
. , So richv. United Stat es , 555 U. S. ___, ___–___ (2009) (S CALI A , J., dis s e nting from den i al of c e r t i o r a r i) (slip o p ., at 3–4) (c olle c t in gc a ses). We h av e pr ev iously found i m portant to o u r vaguene ss analysis “the conflicting results which have a r is en from the painst akingat tempt s of enli ghtened judge s in seeking to carry out [a] statute in cases brought before them.” United Sta t esv. L. Cohen Grocery Co. , 25 5 U. S. 81, 89 (192 1). I am a t a loss to ex plai n whythe Cour t bar elymentions those c o nflic ts today

.8 SKILLING v. UNITED STAT ES Opinion of S CALI A , J. 

### restriction applies. Does it applyonly to pu blic officials? Or in additi on to privat e individuals who contr a ct with the public? Orto everyone, in cluding the corporate officer here? The pre- McNallycase la w does not provide an
answer. Thus, even with the bribery and kickback limitation the statute does not answer the question“What is the criterion of guilt?” But that is perhaps beside the point, because it is obvious that mere prohibition of brib ery and kickbacks was not the int e nt of the statute. To say that bribery and kickba cks r e presented “the core” of the doct rine, or tha t most cases applying th e doctri ne involved those offenses, is not to say that they are the doctrine. All it proves is that the m u ltifarious versions of the doctrin e overlap with regard to t h ose offenses. But the doctrine itself is muc h
more. Among all the pre- McN a llysmörgåsbord-offerings of varieties of honest-services fraud, not onei s limited to bribery and kickba cks. That is a dish th e Court has cook ed up all on its ow n. Thus, the Court’s claim to “respec[t] the legislature,” ante , at 44, n. 43 (emphasis deleted) , is false. It is entirely clear (as the Court and I agree) that Congre ss meant to reinstate the body of pre- McNally honest-services law; and entirely clear that th at prohibit ed much more (though precisely what more is uncertain) than bribery and kickbacks. Perhaps it is true that “Co n gress intended §1346 to reach atleas tbribes and kickba cks,” ante , at 44. Tha t simply does not mean, as the Court now holds, that “§1346 criminalizes only ” brib ery and kickbacks, ibid

. Arrivin gatthat concl u sion requires not int e rpretation but invention. The Court replaces a vague criminal sta n dard that Congress adopted wit ha more narrow one (included with in the vagu e one) that can pass co nstitutional muster. I k n ow of no precedent for such “paring down,” 3

——————

3 The only alleged precedentthe Courtda res t odes crib e is Civil Ser

-9 Cite as: 56 1 U

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### and it seems to me clearly beyondjudicial power. This is not, as the Court claims, ante , a t41, simply a matter of adopting a “limiting construction” in the face of potential unconstitutionality. T o do that, our cases have been careful to note, the narrowing co nstruction must be “fairly possible,” Boosv. B a rry , 485 U. S. 312, 331 (1988), “reasonable,” H ooperv. California , 155 U. S. 648, 657 (1895), or not “plainly contrar yto the int e nt of Cong ress,” Edwa r d J. DeBa rto lo Corp. v. Florida Gulf Coast Building & Constr. Trades Council , 485 U. S. 568, 575 (1988). As we have seen (and the Court does not contest), no c o u r tbefore McNallyconcluded that the “deprivation of honest services” meant onlythe a cceptance of bribes or k i ckback s. If it were a “fairly possib l e” or “reas onable” con s truction, not “contrar y to the intent of Congress,” one woul d think tha t
somecourt would have adopted it. The Court does not even pointto a post

- McNallyca se that rea d s §1346 t o cover only bribery and kickba cks, and I am aware of none. The canon of constitutional avoidance, on which the Court so heavily relies, see ante , at 41–42, states tha t “when the constitutionality of a statute is assailed, if th e

—————— vice Com m ’ nv. Lett er Car r i ers , 413 U. S

. 548 ( 197 3). Th at c a se in

volved a provision of the H a tch Act incorpora t ing prior a d j u dica tions of the Civil Service Commiss ion. We up h e ld the provi s ion a g a i ns t a vagueness cha llenge—not, however, by“pa r ingdown” the adjudic a tion s to a mor en a r r o w ru le th at we in v e n t ed, bu t byc o n c ludin gth at wh at they held was not vague

. See id. , at 571– 574. Th e str i n gof c a ses th e Cour t lists, s ee ante , at 41, n

. 40, (almost n o n eof wh ic haddr esse d cla i m s of va guenes s ) , have n o t h ing t od ow i t h“ p a r i n gd o w n
. ” T h eo n e that c o mes c l osest, United S t ates v. T h ir t y -s e v enPh ot ograph s , 402 U. S. 363 (1 971), sp ec ified a time limit with inwh ic hpr oc eeding s au th or ized by statute for the forfeitureof ob scene i m ported mate rials had to be
c o mmenc ed and c o mpleted. That i s not muc hdiffer e nt fr om “r eadin g in” a reasonable-ti m e requi r ement for ob liga t ions underta ken in con

tr ac ts, an d c a nh a r d lybe desc r ibed as a r e wr itin gor“p ar in gdown” of the statute. The Court relied on le gi slat iv e h i stor yantic i pat i n gth at the proceedings would be prompt, id. , at 370 –3 71, an d n o ted th at (unlike he re) i twas not “decid[ing] issues of policy,” id. , a t372.10 SKILLING v. UNITED STAT ES Opinion of S CALI A , J. 

### statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that constructio n which will save the st atute from constitutional infirmity.” United S t a t es ex rel. Attorney Gene ral v. Delaw a re& Hudson Co. , 213 U. S. 366, 407 ( 1909); see also United Sta t es v. Ru m e l y , 345 U. S. 41, 4 5 (1953) (describing the canon as decisive “in the choice of fair alternatives”). Here there is no choice to be made between two “ fair alternatives.” Unt il today, no one has thought (and there is no basis for thinking) that the honest- s ervices statute prohib

ited only bribery and ki ckbacks. I certainly agree with the Court t hat we mu st, “if we can,” uphol d , rather than “conde m n,” Congress’s enactments, ante , at 38. But I do not believe we have the power, in order to u p hold an enactment, to rewrite it. Congress enacted the entirety of the pre- McNally honestservices la w, the content of which is (to p u t it mildl y) unclear. In prior vagueness cases, we have resisted the temptation to make all things right with the stroke of our pen. See, e. g., Smi t hv. Gogu en , 41 5 U. S. 566, 575 (1974). I would show the same restraint today, and reverse Skilling’s conviction on the basis that §1346 provides no “ascertainable standard” for the conduct it condemns, L. Cohen , 255 U. S., at 89. In s t ead, the Court today adds to ou r functions the prescripti o n of criminal law. III A brief word about the appr opriat e remedy. As I noted supra , at 2 , Skilling has argued that §1346 cannot beconstitutionally applied to him because it affords no definition of the right whose deprivation it prohibits. Though this reason ing is categorical, it does not m a ke Skilling’s challenge a “facial” one, in th e sense that it see k s invalidation of the statute in all its applications, a s opposed to preventing its enforc ement against him. I continue to11 Cite as: 56 1 U

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### doubt whether “strikin gdown” a s t atute is ever an appro

priate exercise of our Article III power. See Chica go v. Morales , 52 7 U. S. 41, 77 (1999) (S CALI A 

### , J., dissenting). In the present case, th e universality of the infirmity S k ill

ing identifies in§1346may meanthat if he wins, anyone else prosec uted under the st atute will win as well, see Smith , su pr a , at 576–5 78. But Skilling only asks that hi s conviction be reversed, Br ief for Petitioner 57–58, so the remedyhe seeks is not f a cial invalidation. I would therefore reverse Skilling’s conviction under §1346 on t h e ground that it fails to define t h e conduct it prohibits. The fate of the statute in future prosecutions

— obvious from my reasoning in the case—would be a matter for sta re de cisis

. * * * It is hardt o imagine a case thatmore clear l y fits th e description of what Ch ief Justice Waite said could not b e done, in acolorful p a ssage oft-cited in our vagueness opinions, United S t ates v. Rees e , 92 U. S., at 22 1: “The question, then, to be determined, is, wh ether we can introduce words of limit ation into a penal statute so a s to make itspecific, when, as expressed, it is general only. “It would certainly be dangerous if the legislat ur e could set a net large enough to c a tch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the leg i slative department of the government. . . . “To limit this statute in the manner now a s ked for would be to make anew law, not to enforce an old
one. This i s no part of our duty.”_________________

_________________ 1 Cite as: 56 1 U

. S. ____ (2010) Opinion of ALIT O , J. 

# SUPREME CO URT O F THE UNI TED STATES

No. 08–1 39 4


### JEFFREY K. SKILLING, P E TIT I ONER v. UNITE D STAT ES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Ju n e24, 2010 ] 

### J USTICE 

### ALI T O 

### , concurring in part and concurring in the judgment. I join the judgment of the Court and all but Part II of the Court’s opinion. I write separately to address peti

tioner’s jury-trial argu ment. The Sixth Amendment guarantees criminal defendants a trial before “an impartial jury. ” In my view, this re

quirement is satisfied so long as no biased juror is actually seated at trial. Of course, evidence of pretrial media attention and widespread community hostility may play a role in the bias inquiry. Su ch evi d ence may be important in assessin gthe adequacy of voir dire , see, e. g. , Mu’Minv. Virginia , 5 00 U. S. 41 5, 428–432 (1991), or in reviewing the denial of requests to dismiss particular jurors for cause, see, e.g. , Pa tto nv. Yount , 467 U. S. 1025, 1036– 1040 (1984). There are occasions in which such evidence weighs heavily in favor of a chan ge of venue. Inthe en d, however, if no biased jury is actu ally seated, there is no violation of the defendant’s right to an impartial jury. See id ., at 1031 –1035, 1041; Murphyv. Florida , 421 U. S. 7 94, 800–801, 803 (1975); see also Riverav. Illino i s , 556 U. S.

___, ___– ___ (2009) (s lip op., at 7–8); United Statesv. Martin ez-Salazar , 528 U. S. 304, 311, 316– 317 (2000); Smithv. Ph illips , 455 U. S. 209, 215–218 (1982). Petitioner advances avery different understanding o f2 SKILLING v. UNITED STAT ES Opinion of ALIT O , J. 

### the jury- tri al right. W h ere there is extraordi nary p r etri al publicity and community hostility, he contends, a court must presume juror prejudice and thus grant a change o f
venue. Brief for Petitioner 25–34. I disagree. Careful voir direcan often ensure t h e sel e ction of impartial jurors even where pretrial media coverage has generated much hostile community sentiment. Moreover, once a jury has been selected, there are measures that a trial judge may take to insulate jurors from media co verage during t h e course of the trial. What the Sixth Ame n dment requires is “an impartial jury.” If the jury that s i ts and returns a verdic t is impartial, a defendant has re ceived wha tthe Sixth Amendment requires. The rule that petitioner advances departs fro m the text of the Sixth Amendment and is difficult to apply. It re

quires a tr ial judge t o determine whether the advers e pretrial media coverage and co mmunity hostility in a particular c a se has reached a ce rtain level of severity, bu t there is no clear wa y of demarca ting thatlevel or of de

termining whether it has been met. Petitioner relies chieflyon three cases from th e 1960’s— Sheppa rdv. Maxwell , 384 U. S. 3 33 (1966), Estesv. Texas , 381 U. S. 5 32 (1965), and Rideau v. Loui sia n a , 373 U. S. 723 (1963). I do not read those cases as demanding peti

tioner’s suggested ap proach. As the Court notes, Sheppa rd and Es tes primarily “involved media interfer

ence with courtroom proceedings during tria l .” An te , a t 16, n. 14; s ee als o post , at 20 (S OTOMAYOR 

### , J ., concurrin g in part and dissenting in part). Rideauinvolved uniqu e events in a small community. I share some of J USTICE 

### S OTOMAYOR 

### ’s concerns about the adequacy of the voir direin this case and the trial judge’s find ings that ce rtain jurors could be impartial. Se e post , at 34–37. But those highlyfact-specific issues ar e not within the question presented

. Pet. for C e rt. i. I als o do not understand the opinion of the Court as reaching3 Cite as: 56 1 U

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### any question regarding a change of venue under Federal Rule of Criminal Procedure 21. Because petitioner, in my view, is not entitled to a re

versal of the decision below on the jury-trial question that is before us, I join the j u dgment of the Court in full._________________

_________________ 1 Cite as: 56 1 U

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Opinion of S OT OMAYOR , J. 

# SUPREME CO URT O F THE UNI TED STATES

No. 08–1 39 4


### JEFFREY K. SKILLING, P E TIT I ONER v. UNITE D STAT ES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE FIFTH CIRCUIT [Ju n e24, 2010 ] 

### J USTICE 

### S O T OMAYOR 

### , with whom J USTICE 

### S TEVEN S 

### and J USTICE 

### B RE YE R

### join, concurring in part and dissenting in part. I concur in the Court’s resolution of the honest-service s fraud question and joi nPart III of its opinio n. I respectfully dissent, however, from the Court’s con c lusion that Jeffrey Skil ling received a fairtrial before an impartial jury. Unde r our releva nt preceden ts, the more intense the public’s antipathy to wa rd a defendant, the more careful a court must be to prevent that sentiment from tainting the jury. In t h is case, passions ran extremely high. The sudden collapse of Enron directl y affected thousands of people in t h e H o uston area and shock e d the entire co mmunity. T h e accompanying barra ge of local media coverage was m a ssive in volume and often caustic in tone. As Enron’s one-time CEO, Skilling was at the center of the storm. Eve nif these extraordinar y circums ta nces did not constitutionally compel a change of venue, t h ey required the DistrictCourt to conduct a tho r ough voir dire in which prospective jurors’ att i tudes about the case were closely scrutinized. The District Court’s inquiry lacked the necessary thorou ghness and left serious doubts ab out whethe r the jury empaneled to decide Skilling’s case was capable of rendering an impartial decision b a sed sol e ly on the evi

dence presented in the courtroom. Accor d ing l y, I would2 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### grant Skilling relief on his fair-trial claim. I The majority unders t ates the breadth and depth o f community hostility toward Sk illing and overlooks significant deficiencies in t h e DistrictCourt’s ju ry selection process. The failure of Enron wounded H o uston deepl y
. Virtually overnight, what had been the city’s “large st, most visible, and most prosperous company,” i t s “foremost social and charitable force,” and “a source of civic pride ” was reduce d to a “sha ttered shell.” Ap p. ¶¶ 11, 13, pp. 649a–650a, 1152a. Thousands of the company’s empl oyees lost their jobs and saw their r e tirement savings vanish. As th e effects ri ppled thro ugh the lo cal economy, thousands of additional jobs disappeared, busines ses shuttered, and community groups that once b e nefited from Enron’s largesse felt t h e los s of million s of dollars in c o ntributions. See, e.g. , 3 Supp. Record 1229, 1267; see als o 554 F. 3d 529, 560 (CA5 2009) (“Accounti n g firms that serviced Enron’s books had less work, hotels had more open rooms , restaurants sold fewer meals, a n d so on”). Enron’s community ties were so extensive that the ent i re local U. S. Attorney ’s Officewas forced to recuse itself from the Government’s investigation into the company’s fall. See 3 Supp. Record 608 (official press release). With Enron’s demise affecting the lives of so many Houstonians, local m e dia covera g e of the story saturate d the community. Ac cor d ing to a d e fense media expert, th e Houston Chronicle—the area’s leading newspaper— assigned as many as 1 2 repo rters to work on the Enron story full time. App. 568a–569a. The paper mentioned Enron in more than 4,000 articles during the 3-year perio d following the company’s December 2001 bankruptcy filing. Hundreds of these ar ticles discussed Skilling by name. See 3 Supp. Record 2114. Skilling’s expert, a professional journalist a n d academic with 30 years’ experience, could3 Cite as: 56 1 U

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### not “recall another instance wher e a local paper dedicat e d as many resources to a single topic over such an extended period of ti me as the Housto n C h ronicle .

. . dedicated to Enron.” App. ¶32, p. 570a. Lo cal television n e ws coverage was similarly pervasiv e and, in terms of “edit o rial theme,” “largely followed the Chronicle’s lead.” Id ., ¶11, at 559 a; see also id ., at 717a. Between May 2002 and Octob e r 2004, local stations aired an estimated 19,000 news segments involving Enro n, more than 1600 of which me ntioned Skilling. 3 Supp. Record 2116. While man yof the stories were straightforward ne ws items, many others co nveyed and amplified the community’s outra ge at the to p executive s perceived to be responsible f o r the company’s bankruptcy. A Chronicle report o n Skilling’s 2 002 testimony before Congress is typical of the coverage. It began, “Across Hou s ton, Enron employees watched fo rmer chief execut ive Je ffrey Skilling’s congressional testimony on television, turning incred u lous, angr y and then sarcastic b yturns, as a man they knew as savvy and detail-oriented pleaded memory failure and ignorance about critical financial transactio n s at the n o w-collapsed energy gian t.” App. 12 18a. “ ‘H e is lying; he k n ew everything,’ said [an employee], who sai dshe had s een Skillin g frequently over her 18 year s with the firm, where Skilling was kno w nfor his intimate gras p of the inner doings at the compan y. ‘I am get t ing sic k er by the min u te.’ ” Id ., at 1219a. A companion piece quoted a local a ttorney wh o called Skill ing an “idi ot” who wa s “in denial”; he added, “I’m glad [Skilling’s] not my client.” Id ., at 592a–593a. Articles deriding Enron’s se nior e x ecutives were juxtaposed with pieces expressing sympathy to ward and s o lidarity with the company’s many victims. Skilling’s medi a expert coun ted nearly a hundre d victim-related stories in the Chronicle, including a “multi-p age layout entitled ‘The Faces of E n ron,’ ” which poignan tly describ e d the gut

wrenching experiences of former employees who lost vast4 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### sums of m o ney, faced eviction from their homes, could not afford Chri stmas gifts for thei r children, and felt “scared,” “hurt,” “humiliat[ed],” “helpless,” and “betrayed.” Id ., ¶71, at 585a–58 6a. The conventional wisdom tha tblame for Enron’s devastating i m plosion a n d the ensuing human tragedy ultimately rested with Ski lling and former Enron Chairman Kenneth Lay became so deeply ingrained inthe popular imagination that refe rences to their involvemen t even turned up on th e sports pages: “If you believe the story about [Coach Bill Parcells] not having anything to do with the end of Emmitt Smith’s Cowboys career, then you probably believe in oth e r far-fe tch ed concepts. Like Jeff Skilling having nothing to do with Enron’s collapse.” 3 Supp. Record 811. When a federal grand jury indicted Skilling, Lay, an d Richard Ca usey—Enro n ’s former chief accounting officer— in 2004 oncharges of conspiracy to defraud, securities fraud, and other crimes, the media placed them directly in its crosshairs. In the words of one article, “there was one thing those whose lives were touched by the once-exalted company all seemed to agree upon: The indictment of former Enron CEO Jeff Skilling was overdue.” App. 1393a. Scoffing at Ski lling’s attempts to pai n t himself as “a ‘victim’ of his subordinates,” id ., at 1394a, the Chronicle derided “the doofus defense” that Lay and Skilling were expected to offer, id ., at 1401a. 1 

### The Chronicle referred to

——————

1 See also App. 735 a (desc r ib i n gEn r o nas “h ar dball fr au d” an d n o tin g that “Enron prosecutors have approached the case more like an organized crime inv e stigat ion tha na corp orate fraud prosec ution,” a“t ac tic [that] make s s e nse” giv e n “the sheer pervasiv e n e ss of fr au d, c o rr u p tion , and self-de a ling”); id ., at 14 03a(“Lay stoo d pr oudly in front of Enron’s facade of success, while S k illing and h i s own prot[é gé], [Andrew] Fa s t ow, ginne d up inc r ea s i ngly conv oluted mecha n is ms for co ncea lin g the financial reality. .

. . A court w ill decide the particulars, but yes, Ken Lay kne w”); id ., 1406 a, 14 09a(des c r ibin gEn r o n’ s c o llapse as “failure as a r e sult of fraud” and criticizi ng Skilling for using “vitriol [as] a smokesc r een” and “bol ting for the door” just before Enron’s stock5 Cite as: 56 1 U

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### the coming Skilling/Lay trial as “the mainevent” and “The Big One,” which woul d finally bring “the tru e measure of justice in the Enron saga.” Reco rd 40002; App. 1457a , 1460a. 2 

### Onthe da y th e superseding indictme n t char ging Lay was issued, “the C h ronicle dedicated th r ee-quarters of its front pa ge, 2 other full pages, and substantial portions of 4 other pages, all in the front or business sections, to th[e] story.” Id ., ¶57, a t 580a–581a. Citing the widely felt sense of victimhood a m ong H o ustonians an d the volu minous adverse publi c ity, Skilli ng moved in November 2004 for a change of venue. 3

### T h e District Court denied t h e moti on, characterizi ng the media coverage as largely “objective and unemotiona l .” App. to Brief for United Sta t es 11a. Voir dire , it concluded, would provide an effective means to “fer ret out an ybias” in th e jury pool. Id. , at 18a; see ante , at 4. To that end, the District Co urt began the jury selection process by mailing screening questionnaires to 400 prospective jurors in November 2005

. The com p leted ques

tionnaires of the 283 respondents not excused for hardship dramatically illustrated the wi des p read impact of Enron’s

—————— pr ic e plu mmet e d); 3 Su pp. Rec o r d1711 (di s c u ssin gth e role of Skill in g and Lay in “the granddaddy of all c o r p or ate fr au ds”). 2 According toSkilling’s m e dia expert, local televisio nstation s “adopte dthes e same theme s ” and “d r [ o]v ethem home thr o ugh such vivid and repeated visual im agery as replaying footage o f Skilling’s .

. . ‘perp walk’ when details ab out Ski lling’s upcoming t r ial [we]re di sc u ssed.” App. ¶65, p. 5 84a. Du r i n gar r a ig n m en t, n e ws ou tle t s “followed eac hman as he dr ov e fr om his home to FBI head quar ter s , to the
c o ur t, and bac k home, often pr ov iding ‘c olor ’ c o mmentar y

— suc ha s interviewing f o rmer Enron e m ployees for comment on th e day’s events. ” Id ., ¶60, at 581a.

3 Report ing on t h e cha n ge-of- venuem o t i on, t h e Chro nicl e des crib e d Skilling as a “desperate defendan t,” and the Au st in AmericanStatesman opined that while a change of ve nue may make sense “[f]rom a leg a l per s pec t iv e,” “fr o m the standpo int of purejustice, the wealthy executives rea lly shouldbe judged right where thei r e c onomic hurri

ca ne s t ruckwi t ht h e m o s tforce.” Id ., at 74 8a, 747 a.6 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### collapse onthe Houston community and confirmed the intense an i m osity of Houstonians toward Skilling and hi s codefendants. More than one-third of the prospective jurors (approximately 99 of 283, by my count) indicated that they or persons th ey k n ewhad lost money or jobs as a result of the Enron bankruptcy. Two-thirds of the jurors (about 188 of 283) expressed views about Enron or the defendants that suggested a potential predispositionto convict. Inmany instances, they did not m i nce words, describing Skilling as “smug, ” “arrogant,” “brash,” “co nceited,” “g r eedy,” “dec eitful,” “tot a lly unethical and cri minal,” “a c r ook,” “ t he biggest liar o nthe face of the eart h, ” and “guilty as sin” (capitalization omitted). 4 

### Only about 5 percent of the prospective juro rs (15 of 283) did not read the Housto n Chronicle, had not o t herwise “h eard or read about any of the Enron cases,” Record 130 19, were n o t connected to Enron victims, and gave no answers sugge st­

——————

4 See, e. g. , Ju r o r1 (“Ken Lay an d th e oth e rs ar e g u iltyas all g e t ou t and ought t ogo to jail”; Skilling is “[b]rash, [a]rrogant [and] [c]onceited”; “Ifind it morally awfu lthat these people are still running loose”); Juror 70 (“Mr. Skill ing is th e big g est liar on the face of the earth”); Juror 163 (Sk illing“ w ould lie to his mother if it would further his cause”); Juror 185 (“I think [Sk illing] was arrog a nt and a crook”); Juror 200 (Sk i llingis a“[s]k i llful [l]iar[ a nd] crook” who did “ alotof th e dirty work”; th e defendants would “have to be blind, de af, [and] stupi d to b euna wa re of wha twa s ha ppening! ” (empha s i s deleted)); J u ror2 0 6 (Skilling is “[t ] otally unethical and crimi nal”; the defe ndants “are a ll guilt y a n d s h ould b ereduced t ohaving t o b e g on t h e corner [a nd] live
u n d era br idge”); Ju r o r238 (“Th eyar e all g u iltyas sin

—c o me onn o w”); Juror 299 (Ski lling“initia t ed , desig n ed, [and] authorized certain illeg a l
ac tion s”); Ju r o r314 (Lay“ s h o u l d ‘ f es s up’ a n d ta ke his punis h ment like
a m a n”; “[ t]he sa me g oes forJeffr eySk illing. .

. . He and his family .

. . should be stripped of all of theirassets [ a nd] made to star t ov erjus t like th e th ousan d s h e ma de star t all o v er”); Jur o r 377 (Skill in gis “[s]mug , ” “[g] reedy , ” and “[d] ising e nu[ou s]”; h e“h ad an ac tiv eh a n din
c r e atin gan d su sta i n i n ga fr au d”). Defen d an ts’ Ren e wed M o tionfor Ch an g eof Ve n u e , Rec o r d , Doc

. 618 ( S ea led Ex h s .) (h er ein a fterSkill

in g ’ s Ren e wed Ven u eM o tion); see also App. 794 a–7 97 a (su m m a r i zi n g addit i on al r e spon ses).7 Cite as: 56 1 U

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### ing possible antipathy toward the defendants. 5

### T h e p a r ties jointly stipulated to the dismissal of 119 members of the jury po ol for cause, hardship, or disabilit y, but numerous individ uals who had made harsh comments about Skilling re mained. 6 

### On Decemb er 28, 2005, shortly after the questionnaires had been returned, Causey pleade d guilty. The plea was covered in lead newspaper and television stor ies. A frontpage headline in the Chronicle proclaimed that “Causey’s

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5 An oth e r20 per c e n t(abou t59 of 283) in dic a ted th a tth eyr e ad th e Chronicle or ha d otherwis e hea r d ab o ut the Enron ca s e s b u t did not
r e por tth at th eyw e r ev i c t ims ormake commen t s su g g e stin gpossib l e bia s ag ain s t t h e defen d an ts.

6 See, e.g
. , Ju ror29 (Skil lin gis “[n ] ot anh o n e st man” ); Ju r o r104 (Skilling“knows more than he’s ad mittin g”); Juror 211 (“I believ ehe was in v o lv ed inwr on gdoings”); Ju r o r219 (“So man ypeople lost th eir life savings be cause of the di shonestyof so me members o f the executive team ”; Skil lin gwas “[ t]oo ag g r essiv ew[ith ] ac c o u n t in g” ); Ju r o r234 (“With his le vel of cont rol and power, hard to belie ve that he was unaware andnot responsible in some way” ); Juror 240 (Ski llin g “[s]eems to be v e rymu chi n v o lv ed in cr imin al g o in g s on”); Ju r o r255 (“[T]housands of people were take n advantage of by exe c utives at Enron”; Skilli ng is “arrogant”; “Sk illing was Andrew Fa stow’s im medi

ate superior. Fastow has pl ead[ed] guilty to felony cha r ges. I believe Skillingwas a w are of Fastow’s illeg a l behav i or”); Juror 263 (“N i ce try
r e sig n in g6 mon t h s befor eth e c o llaps[e], bu t ag ain , h e h a d to kn ow what was g o ingon”); Juror 272 ( S k illing“[k]new he was g e ttingout before the [d] a m [b ]roke”); Juror 292 ( S k illing“[b] ailedout when he knew Enro n was going down”); Juror 31 5 (“[H]ow could they not know
an d th eyseem to be ly in gabou tsome th in g s ”); Ju r o r328 (“Th eysh ou l d b e held res p ons ib l e as officers of t h is com p a n y for wh a tha ppened” ); Ju r o r350 (“I believ eh eg r eatlymi su sed h i s poweran d affec t ed h u n dreds of lives as a result”; “ I believe they are all guilty. Their ‘doings’ affected not only those emp l oyed byEnro n b u t ma ny o t hers a s well”); Ju r o r360 (“I seem to r e memberh i m tr y i n gto c l aim to h av emen t al or emotionalissues that would remove hi m from any guilt. I think thatis d e c e i t f u l

. I ts e e m s a s t h o u ghh ei s a bigp l ay erinth e down fall”); Ju r o r 378 (“I believ e h e kn ew, an d c e r t ain l ysh ou ld h av e kn ownas th e CEO, that il legal an d improper [activities] were ra m p a n t in Enron” ; “ I b e lieve all of them were ins t rument al, and we r e co-c on spir ator s, inth e massiv e fraud perpetrated at Enron”). Skilling’s Renewed Venue Motion.8 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### plea wreaks havoc for Lay, Skilling.” Record 12049, n. 13; see als o ibid . (quoting a former U. S. atto rney who described the plea as “aserious blow to the defense”). A Chronicle editorial opined that “Causey’s admissionof securities fraud .

. . . m a kes less plausible Lay’s claim tha t most of theguilty pleas were the result of prosecutorial pressure rather than actual wrongdoing.” Id. , at 12391.With the trial date quickly approaching, Skilling renewed his change-of-venue motion, arguing that both the questionnaire responses and the Causey gui l ty plea confirmed that he could not receive a f a ir trial in Houston. In the alternative, Skilling asserted that “de f endants are entitled to a more thorough juryselection process than currently envisioned by the [c]ourt.” Id. , at 12067. Th e court had announced its intentionto question individual jurors at t h e bench with one attorney for each side present, and to complete the voir dire in a single day. See, e.g. , id ., a t 11804–11805, 11808. Skilling proposed, inter alia , tha t defense counsel be afforded a gr eater role in questioning , id ., at 12 074; that jurors be q u estioned privately in ca mera or in a closed courtroom where it would be easier for counsel to co nsultwiththeir colleagues, clients, an d jury con s ultants, id ., at 1207 0–12072; a n d that the co urt “avoid leading questions,” which “tend to [e]licit affirmative responses from prospective jurors that may not reflect their actual views,” id ., at 1 2072. At a minimum, Skilling asserted, the court should grant a continuance of at leas t 30 days a n d send a revised ques

tionnaire to a new group of prospective jurors. Id ., a t 12074–12075. The District Court de nied Skilling’s motion without a hearing, stating in a brief order that it was “no tpersuaded that the e v idence or a r guments u r ged b ydefendants .

. . establish t hat pretrialpublicity and/or community preju

dice raise a presumpti o n of inher e nt jury prejudice.” Id ., at 14115. Accordin g to the court, the “ju r y q u estionnair e s9 Cite as: 56 1 U

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### sent to the remaining members of the jur yp anel and th e court’s voir dire examination of the jury p anel provide adequate safeguards to defendants and will result in the selection of a fair and impartial jury in this case.” Id ., at 14115–14116. The cou rt did agre e to delay the trial by two weeks, until January 30, 2006. The coming trial featured promi n ently in local news outlets. A front-page, eve-of-trial story in the Chronicle described “the hurt an d angeran d resentment” that ha d been “churn[ing] insid e ” Houstonians since Enron’s collapse. Id. , at 39946. Again criticizing Lay a n d Skilling for offering a “doofus defense” (“a plea of not guilty by reason of empty-headedness”), the paper stated that “Lay and Skilling took hundreds of milli ons in com p ensation ye t now fail to acceptthe responsibility tha t went withit.” Ibid

. The article allowed that the defendants’ guilt, “though pe rhaps wide ly assumed, remains even now a n assertion. A jury n o w takes up the task of decidin g whether th at assertion is valid.” Id ., at 3994 7. The next paragra p h, however, assured re aders that “it’s normal for your skin to crawl when Lay or Skilling claim with do eeyed innocence that they were u naware tha tsomething was amiss at Enron. The company’s utter failure belies the claim.” Ibid . (one paragra p h break omitted); see als o id ., at 3990 4 (declaring that Lay and Skilling would “have to offer a convincing explanat ion for how executives once touted as corporate ge niuses could be so much in the da rk about the illegal activities and dec e ptive finances of their own company”). It is again s t this backdrop of widespread community impact andpervasive pretrial publicity that jury selection in Skilling’s case unfold e d. Approximately 160 prospective jurors appe ared for vo ir dire atafederal co urthouse located “about six blocks from Enron’s former headquarters.” 554 F. 3d, at 561. Addressing them as a group, the DistrictCo urt began by brie fly describing the case a n d10 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### providing astandard a d moniti on about th e n eed t o b e f a ir and impart ial and to decide th e case ba sed sol e ly on t h e trial eviden ce and jury instruction s
. The court then asked whether an yone had “ a ny reservations ab outyour ab ilit y to con s cien tious l y andfairly follow these very importa n t rules.” App. 815a. T w o individ u als ra is ed their h a n d s and were c a ll ed forwa r d to the be nch. One t o ld the c o u rt that he thought Lay and Skillin g “knew exactly what they were doing” and would have to prove their innocence. Id ., at 818a–8 1 9a. Th e second juror, who had s t ated on h i s written questionn a ire t h at he heldno opinionthat would preclude h i m from b e ing impar t ial, dec l ar ed that he “would dea r ly love to sit on this jury. I would love to claim r e sponsib ility, at lea s t 1 

### ⁄

12 

### of the re spon sibi lity, f o r putting these sons of bitches away for th e rest of their lives .” Id ., at 819a– 82 0a. Th e court excusedboth jur o r s for cause. The court proceeded to question individual jurors fro m the bench. As the majority reco unts, ante , at 7–8, the court aske d them a few general yes/no qu estions about their exposure to Enron-relate d news, often variations of, “Do you rec a ll any particular arti cles that stand out that you’ve read about the case?” App. 850a. Th e court als o asked about questionnaire answe rs that suggested bias, focusing mainly on whether, notwithstandi n g seemingly partial comments, the prospecti ve jurors believed they “could be fair” and “putthe government to its proof.” Id ., at 852a. Counsel wer e permitted to follow up on issues raised by the court. The court made clear, however, that its patience would be limited, see, e.g. , id. , at 879a, and questioning tended to be brief—generally less than five minutes pe r person. Even so, itexposed d i squalifying biases among several prospecti ve jurors who had earlier expressed no concerns about their ability to be fair. 7

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7 See App. 894 a (Ju r or43) (ex p r e ssed th e v i ew th at the defen d an ts11 Cite as: 56 1 U

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### Once it identified 38 qualif ied prospective jurors, the court allowed the defense and Government to exercise their allotted peremptory challe nges. This left 12 jurors and 4 alternates, who were sworn in and in structed, fo r the first ti me, “not [t o] read anything dealing with t h e case or list e n to any discussion of the caseon radio or television or access any Intern et sites that may deal with the case” a n d to “infor m your frie nds and fa mily members that the ys h ould not discuss withyou anythi n g they ma y have read or heard about this case.” Id ., at 1026a. Start to finish, th e selection process took about five hours. Skilling’s trial commen c ed the next day and lasted four months. After several days of deliberations, the jury found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of ma king false representations to auditors, and 1 count of in sider tradi ng; it acqui tted on 9 i n sider tradi ng counts. The jury found Lay guilty on a ll counts. On appeal, Skilling asserted that he had been denied his constitutional right to a fair trial before an impartial jury

. Addressing this claim, the Court of Appea l s began by disavowing the DistrictCou rt’s findings concerning “community hostility.” The r e was, the court concl u ded, “sufficient inflammatory p r etrial ma terial to require a finding of presumed prejudice, especi ally in light of the immens e volume of c o verage.” 554 F. 3d, at 559. “[P]rejudice was [also] inherent in an alleged co-conspirator’s well­

—————— “stole money” from their employees); id. , at 922 a (J u r or55) (a dmi tte d that she “lean[ed] towards pr ej udging” th e defenda n ts ); id. , at 946 a (Jur or71) (stated that she would place the burden of proof on the defendants); id. , at 9 54a–9 6 0a (J u r or75) (in d ic ated th a tsh e c o u l d n o t set asi d e her view that there was fraud at Enron) ; id

. , at 100 3a– 10 06 a (Ju r or104) (s tatedth atsh e qu estion ed th e defen d an ts’ in n o c e nc e an d that she “would be v e r yup set withthe gov e r n ment if theyc o uld not prove their ca se”); id. , at 1 008 a (Ju r or112) (ex p r e ssedth at th e v i e w that the defendants were gu ilty).12 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### publicized decision toplead guil ty on the eve of trial .” Ibid

. The Court of Appeals, moreover, faulted the Distric t Court for failing to “consid er the wider context.” Id ., a t 560. “[I]t was not enough for the court merely to asses s the tone of the news reporting. The evaluation of the volume and nature of reporting is merely a proxy for th e real inquiry : whether there could be a fa ir trial by a n impartial jury that was not influenced by outside, irrelevant source s.” Ibid . (internal quotation marks omitted)

. Accordin g t o the Court of Appeals, “[t]he district cour t seemed to overlookthat th e prejudice came from mor e than just pretrial media publicity, but also from the sheer number of victims.” Ibid

. Having determined that “Skilling was enti tled to a presumption of prejudice,” the Court of Appe als proceeded to explain that “the pre s umption is rebuttable, .

. . and the governmentmay demo nstrate fro m the voir diret h atan impartial jury was actually impanelled.” Id ., at 561 (internal quotation marks omitted). Describingthe voir dire as “exemplary,” “searc hing,” and “proper an d thorough, ” id ., at 562, the court concluded that “[t]he government [had] met i t s burden o f showing that the actual jury th at convicted Skilling was impartial,” id ., at 564– 565. On this basis, the Court of Appeals rejected Skilling’s claim and affirmed his convictions. II The Sixth Amendment righ t to an imparti al juryand the due process right to a fundamentally fair trial guara n tee to criminal defendants a trial in which ju rors set aside preconcepti o ns, disregard ex trajudicial influences, an d decide guilt or innocen c e “based on the evidence presented in court.” Irvinv. Do wd , 366 U. S. 717, 723 (1961); see also Shepp a rdv. Maxwell , 384 U. S. 333, 362 (1966 ). Community passions, often infla m ed by adverse pretrial publicity, can call the integrity of a trial into doubt. In13 Cite as: 56 1 U

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### some in stances, this Court has observed, the hostil ity of the community becomes so severe as to give rise to a “presumption of [juror] prejudice.” Pa ttonv. Yount , 467 U. S. 1025, 1031 (1984). The Court of Appeals incorporated the concept of pre

sumptive prejudice i n to a burden-shifting frame w ork: Once the defendant musters sufficient evidence of com

munity hostility, the onus shifts to the Government to prove the impartialityof the jury. The major i ty similarly envisions a fixed point at which public passion s become so intense tha tprejudice to a defendant’s fair-trial righ ts must be pr esumed. The majoritydeclines, however, to decide whether the presumption is rebuttable, as the Court of Appeals held. This Court has never treated the notion of presumptive prejudice so formalistically. Our decisions instead merely convey the commonsen se understanding that as the tide of public enmity rises, so too d oes the danger that the prejudices of the community will infiltrate the jury. The underlying question has always been this: Do we have confidence that t h e jury’s ve rdict wa s “induced only by evidence and argum e nt in opencourt, and not by any outside influence, whether of private talk or public print”? Pattersonv. Colorado ex rel. Attorn ey Gene ral of Colo. , 20 5 U. S. 454, 462 (1907). The inquiryis necess arily case s p ecific. In selecting a jury, atria lcourt mu st take me asures adapted to the intensity, pervasiveness, and character of the pretrial publicity and community animus. Reviewing courts, meanwhile, must assess whethe r the trial court’s procedures sufficed under t h e circums tances to keep the jur y free from disqualifying bias. Cf. Murphyv. Florida , 42 1 U. S. 794, 799 (1975) (scrutinizing the record for “an y indications in the totality of ci rcumstance s that peti

tioner’s trial was not fundamentally fair”). This Court’s precedents illustrate the sort of steps required in different14 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### situations to safeguard a defe ndant’s constit u tional right to a fair trial before an impartial jury. At one end of the spectrum, this Court has, on rare occasion, confronted such inherently prejud icial circumstances that it has reversed a defendant’s conviction “without pa using to examine .

. . t h e voir direexamination of the members of the jury.” Rideauv. Louisiana , 373 U. S. 723, 727 (1963). In Rideau , repeated television broadcasts of the defendant’s con f ession to murder, ro bbery, and kidnaping so thoroughly poisoned local sen t iment as to raise doubts that even the mostcareful voi r dire could have secured an impa rtial jury. A change of venue, the Court deter m ined, was thus the only way to assure a fair trial. Ibi d .;see als o6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §23.2(a), p. 264 (3d ed. 200 7) (hereinafter LaFa ve) (“The bes treading o f Rideau is that the Court there recognized that prejudici a l publicity m a y be so inflammatory and so pervasive tha t the voir di r e simply ca nnot be tru sted to full y reveal th e lik ely prejudice among prospective jurors”). As the m a jority des cribes, ante , at 14, this Court reached similar conclusions in Estesv. Texas , 381 U. S. 532 (1965), and Shep pard , 384 U. S. 333. These cases involved not only mass ive pretrial publicity but also media disruption of the trialprocess its e lf. Rejecti ng the a r g u ment that the defendants were no t entitled to relief from their convictions because they “ha[d] established no isolatable prejudice,” the Court desc ribed the “ untoward c i rcumstances” as “inherently suspect.” Es te s , 381 U. S., at 542, 544. It would have beendifficult for the jurors not to have been swayed, at least subconsciously, by the “bedlam” that s u rrounded them. Sheppard , 384 U. S., at 35 5. Criticizing the trial courts’ failur e s “to prot ect the jur y from outside influence, ” id ., at 358, the Court stressed that, “where there is areas onable likelihood that prejudicial news prior to trial will prevent a fair tri al, the judge15 Cite as: 56 1 U

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### should continue the case until the threat abates, or transfer it to another [venue ] not so per m eated wit hpublicity. ” Id ., at 363. Este sand Sheppa rdthus applied Rideau ’s insight that in partic u larly extr eme circumstances even the most rigorous voir direcann ot suffice to dispel the reasonable likelihood of jury bias. Apartfrom these exceptional cases, this Court has declined to discount voir dire entirely and has instead examined the particulars of the jury selection process to determine whether it sufficed to produce a jury untainted by pretrial publicity a n d community animus. The Court has recognized that when ant ipathy towa rd a defendant pervades th e community there is a high risk that biased jurors will find their way onto the panel. The danger is not merely that some prospecti ve jurors willdeliberatel yhide their prejudices, but also that, as “part of a community deeply hostile to t h e accused,” “they mayunwittingly [be] influenced” by the fervor thatsurrounds them. Mur

phy , 421 U. S., at 803. To assure an impartial jury in such adverse cir c umstances, a trial court must c a refully consider the knowledge and attitude s of prospective jurors and then closely scrutinize the reliability of their assurances of fairness. Cf. Morganv. Illinois , 504 U. S. 719, 729 (1992) (“[P]art of the guarantee of a def e ndant’s right to an impartial jury is an adequate voir dire to identif y unqualified jurors”). Irvin offers an example of a case in which the trial court’s voirdire did not suffice t o counter t h e “wave of public passion” that ha d swept the communityprior to th e defendant’s trial. 366 U. S., at 728. The local news media had “exten sively covered” the cr imes (a murder spre e), “arous[ing] great excite ment and indignation.” Id ., at 719 (internal quotation marks omitted). Following Irvin ’ s arrest, the press “blanketed” the communitywith “a ba rrage of newspaper headlines, articles, cartoons and pictures” com m unicating numerous unfavorable details about16 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### Irvin, including that h e had purpo rtedly confe ssed. Id ., at 725. Nearl y90 percen tof the 43 0 prospecti ve jurors examined during the trial court’s voir dire“enter tained someopinion as to guilt—ranging in intensity from mere suspicion to absolute certainty.” Id ., a t727. Of the 12 jurors seated, 8 “thought petitioner was guilty,” alt h ough “each indicated that notwithstandin g his opinionhe could render an impartial verdict

. ” Id ., at 727, 724. Despite the seated jurors’ assurances of impartiality, this Court invalidated Irvin’s con viction for want of du e process. “Itis not requ ired,” this Court decla r ed, “tha tt h e jurors be to tally ignora nt of the fa cts and iss u es involved.

. . . It is sufficient if th e juror can lay aside his impression or opinion and render a verdict based on t h e evidence presented in court.” Id ., at 722–723. The Court emphasized, however, thata juror’s wor don this matter is n o t decisive, particularly when “the build-up of prejudice [ i n the commu n ity] is clear and con vincing.” Id ., at 725

. Many of Irvin’s jurors , the Court noted, had been influ

enced by “the pattern of deep and bitter prejudice shown to be present through o ut the community.” Id ., at 727 (internal quotation marks omitte d). The C o urt did no t “doubt [tha t] each juro r was sincere when he said that he would be fair and impartial to [Irvin], but .

. . [w]here so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight.” Id ., at 728. The media coverage and community animosity in Irvin was parti cu larly intense. In three subsequent cases, this Court recognized tha thigh-p rofile cases may generatesubstantial publicity without stirring similar public passions. The jury selection process i nsuch cases, the Court clarified, generally need not be as exhaustive as in a cas e such as Irvin

. So long as the trial court con d ucts a rea

sonable inq u iry into extrajudicial i n fluences and the ability of prospective jurors to presum e innocence and render17 Cite as: 56 1 U

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### a verdict b a sed solely on the trial evidence, we would generally have no reason to doubt the jury’s i m partiality. 8 

### The first of these cases, Murphy , 4 21 U. S. 79 4, involved a well-known defenda n t put on trial for a widely publ icized Miami Beach robbery. Th e state trial court denied his motionfor a cha n ge of ven u e and during voir dire excused 20 of the 78 prospective jurors for cau s e. Distinguishing Irvin , this C o urt saw n o indication in the voir dire of “such hostility to [Murphy] by the jurors who served in his trial as to suggest a partiality that could n o t be laid aside.” 421 U. S., at 800. Althoughsome jurors “had a vag u e recollect ion of the r o bbery withwhich [Mu r phy] was charged and each had some knowledge of [his] past crimes,” “none betrayed any belief in the relevance of [Murphy ’ s] past to the present case.” Ibid.; s ee als o ibid. , n. 4 (contrasting a juror’s “mere familiarity with [a defendant] or his past” with “an actu al predisposition against him”). “[T ] hese indicia of impartiality,” the Court sug

gested, “might be disregarded in a case where the genera l atmosphere in the community or courtroom is sufficiently inflammatory, butthe circumsta n ces surro unding [M urphy’s] trial [were] not at all of that variety.” Id ., at 802. In a second case, Yount , 467 U. S. 1025, the defendant was grante da new trial four ye ar s after being convi cted of murder. He requested a change of venue, citing pretrial publicity and the wides p read local knowledge that he had previously been convicted and ha d made con f essions th at would be inadmissible in court. The state trial court denied Yount’s motion and seate da ju ry following a 1 0

­ day voirdi re of 292 p r ospective j u rors. Nearly all of th e

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8 Of cou r s e , eve nif t h ej u rys e lect io n process is adequate, atrial court
v i olates a defe n d an t’ s r i gh t t oanimpa rt ia l j u ry if iterro neous l y denies a for

- c a u s e c h allen g e to a bi ased v e n i r em e mberwho ultimate lysit s o n the jury. See, e.g
. , Unit ed Statesv. Martinez-Salazar , 528 U. S. 30 4, 316 ( 2 0 00) ( “ [T]h e seatin go f an yju r o rwho sh ou ld h av ebeendism isse d for ca us e .
. . would req u ire revers a l” )

.18 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### prospective jurors had heard of t h e case, an d 77 percent “admitted t h ey would carr y an op inion into the jury bo x
. ” Id ., at 1029. Declining to grant relief on f e deral habeas review, this Court stressed th e significant interval between Yount’s first tria l—when “adverse publicity and th e community’s sense of outrage we re at their height”—an d his second trial, which “did not occur until four years late r, at a time when prejudicial publicity was greatly diminished and community sentiment had softened.” Id ., at 1032. While 8 of the 1 4seated ju rors and alternates had “at some ti me .
. . formed an opinion as to Yount’s gui l t,” the “particu larly extensive” voir dire confirmed that “tim e had weaken ed or elimin ated any” b i as they once may have harbored. Id ., at 1029–1030, 1034, n. 10, 1033. Accordingly, this Court concl u ded, “the t r ial court di d not commit manifest er ror in finding that the jury as a whole was impartial.” Id ., at 1032. This Court most recently wrestl ed with the issue of pretrial publicity in Mu’Minv. Virginia , 5 00 U. S. 415 (1991). Mu’Min stood accused of murdering a wom a n while out of prison on a workdetail. Citing 47 newspaper articles about the crim e , Mu’Min moved for a change of
venue. Th e state tria lcourt defe rred its ruling and attempted to seat a jury. Du ring group questioning, 16 of the 26 prospective jur o rs indicated that the yhad hear d about the case from media or other source s. Di viding these prospective jur o rs into p anels of four, the court asked further general questions ab out their ability to be fair given what they had heard or read. One juror an

swered equivocally and was dismissed forcause. T h e court refus e d Mu’Min’s request to ask more specific questions “relating to the content of news items that potential jurors might have read or seen.” Id ., at 419. Of the 12 persons who served on the jury, “8 had at one time or another read or heard somethin g about th e case. None had indicated that he had formed an opinion about theCite as: 56 1 U

. S. ____ (2010) 19 Opinion of S OT OMAYOR , J. 

### case or would be biasedin any way.” Id ., at 421. Rejecting Mu’Min’s attempt to analogize his case to Irvin , this Court observed that “th e cases differ both in the kind of community in which the coverage took place and in extent of m e dia coverage.” 500 U. S., at 429. Mu’Min’s offense occurred in th e metropolitan Washington, D. C

. , area, “which has a po pulation of over 3 mil lion, and in which, unfo rtunately, h undreds of murders are committed each year.” Ibid

. Whil e the crime garnered “substantial” pretrial pu blicity, the coverage was not as pervasive as in Irvinand “did not contain the same sort of damaging information

. ” 500 U. S., at 429–430. Moreover, in contrast to Irvin , the seated jurors uniformly disclaimed having ever formed an opinion about the case. Given these circu mstances, t h is Court r e buffed Mu’Min’s assertion that th e trial court commi tte d constituti onal error by declining to “make pre c ise inquiries about the contents of any news reports that potential jurors have read.” 50 0 U. S., at 42 4. The Court stressed, however, th at its ruling was contex t

- specific: “ H ad the trial courtin th is case been confronted with the ‘wave of public passion’ e n gendered by pretrial pu blicity thatoccur r ed i nconnection withIrvi n’strial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it un dertook here.” Id ., at 429. III It is necessary to dete rmin e how this case compares to our existingfair-trial p r ecedents. Were the ci rcumstance s so inherently prejudicia l that, as in Rideau , even the most scrupulous voir direwo uld have be en “but ahollow formality” inca pable of reliably produ c ing an imparti al jury? 37 3 U. S., at 72 6. If the circumstances were not of this character, did the DistrictCo urt condu c ta jur yselection proces s sufficiently adapted to the level of pretrial publicity an d20 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### community animus to ensure the seating of jurors capable of presuming innocence and shutting out extrajudicial influences? A Though the question is close, I agree with the Court tha t the prospect of seating an unbias ed jury in Houston was not so remote as to compel the conclusion that the Distric t Court acted unconstitutionally in denying Skilling’s motion to change venue. Three co nsiderations lead me to this conclusion. First, as t h e Court o b serves, ante , a t16, the size and diversity of the Houston community ma ke it probable that the jury pool contained a nontrivial number of persons who were u naffected by Enron’s c o llapse, neutral in their outlook, and unlikely to be swept up in th e public furor. Second, media coverage of the case, while ubiquitous and often inflammatory, did not, as the Court points out, ante , at 17, contain a confessi on by Skilling or similar “smoking-gun” evidence of specific criminal acts. For many prospective jurors, the guilty plea of codefendant and alleged co-conspirator Causey, alon g with the pleas and convictions of other Enron executives, no doub t suggested guilt by association. But reasonable mind s exposed to such information would not necessarily have formed an indelible im pression that Skilling himself was guilty as ch arged. Cf. Rideau , 373 U. S., at 726 (a majority of the county’s resid e nts were “exposed repeatedly and in depth to the specta cle of Rideau personally confessing in detail to the crimes with which he was later to be charged”). Third, there is no suggestion that the courtroom in this case became, as in Estes and Shepp a rd , a “carnival” i nwhich th e “calmness and solemnity” of t h e proceedings was compromised. Sheppa rd , 384 U. S., at 358, 350 (internal quotation marks omitted). It is thu s appropriate to exami n e the voir dire anddetermine whether it instills confidence inthe impartiality of the21 Cite as: 56 1 U

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### jury ac tually selected. 9 

### B In concluding that the voir dire “adequately detect[ed] and defuse[d] juror bias,” ante , at 20, the Court downpla y s the extent of the community’s antipathy to ward Skilling and exagge rates the rigor of the jury selection process. The devastating impact of Enron’s collapse and the relent

less media coverage demandedexceptional care on t h e part of the District Co urt to ensure the seating of an impartial jury. Whil e th e procedures employedby the District Court might have been adequate in the typical hi gh

profile case, they did not suffic e in the extraordinar ycircumstances of this case to safeguard Skilling’s constitutional right to a fair trialbefore an impartial jury.

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9 Whet her t h e Dis t rictCourtab u s e d its dis cret i on in declining t o cha n ge ven u e purs ua ntt ot h e Federa l Rules of CriminalProcedure is a different question. See Fed

. Rule Crim. Proc. 21(a) (“Upon the defe ndant’ s motion , the c o ur t must tr ansferthe pr oc eeding ag ainst tha t defendant to anotherdistr i c tif the c o ur tis s a ti sfied t h at so g r eat a prejudice against the defendant exists in the t r a n s f errin gdis t rictt h at the defendant c a nnot obtain a fairand impartial tri a l t h ere”). As this Cour t has indic a ted, its supe rv isor ypower sc o nfer“mor el a titude ” to se t
s t a n da rds for t h e conductof t r ia ls in federa l court s t h a n in s t at e court s
. Mu’ M

inv. Vi rginia , 500 U. S. 415, 4 24 (1 991). Wh ile t h e c i rc u m stan c e s maynot c o nst i tutionallyc o mpel a c h a n geof ve nue“without pa us ing to examine

. . . th e voir d i re ,” Rideauv. Lo uisiana , 373 U. S. 723, 72 7 (196 3), th e wi delyfelt sen s e of v i c t imh oodamon gHou s t o n i an s an d th e community’s deep-seated ani m us to ward Skilling certainly meant that t h e t a s kof reliably ident i fying unt a i nt ed j u rors pos e d ama j o r cha l

lenge, with no guarantee o f success. I tlikely wouldhave been f a r easier to emp a nel an impar t ial juryin a venue whe r e the Enron story had less sa lie nc e. I thus ag r ee with the Cour t of App e als tha t“[i] t would not hav ebeen imprudent forthe [Distr ic t] [C]our t to hav e granted Skilli ng’s transfermotion.” 554 F. 3d 52 9, 5 58 (C A5 20 09 ). Skilling, however, likely forfeited an y Rule 21 or supe rvisory powe rs claim by f a ilin g to present iteither in his opening brief before the Fift h Circuit , s ee id ., a t55 9 , n. 3 9 , or in his pet i tion for cert ior a ri, cf. ante , at 12, n

. 11.22 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### In conducting this analysis, I am mindful of the “wide discretion” owed to tri al cou rts when it co mes to juryrelated issues. Mu’Min , 500 U. S., at 427; cf. ante , at 20 – 21. Trial courts are uniquely pos i tioned to a ssess public sentiment and the credibility of prospective jurors. Pro x imity to events, however, is not always a virtue. Person s in the midst of a tumult often lack a panoramic view. “[A]ppellate tribunals [thus] have the duty to make an independen t evaluation of the circumstances.” Shep pard , 384 U. S., at 362. In p a rticular, reviewing courts are well qualified to inquire into whether a trial court implemented procedures adequate to keep com m unity prejudices from infecting th e jury. If t h e jury selection process does not befit the cir c umstances of the case, the trial court’s ruling s on impartiality are necessarily called into doubt. Se e Morgan , 50 4 U. S., at 729–730 (“ ‘Without an adequate voir direthe trial judge’s responsibility to re move prospective jurors who will not be able i m partially to follow the court’s instructions and evaluate the evidence cannot b e fulfilled’ ” (quoting Rosales- Lopezv. UnitedStates , 45 1 U. S. 182, 188 (198 1) (plurality opinion) )); see als o Mu’Min , 500 U. S., at 4 51 (K ENN E DY 

### , J., dissenting) (“Ou r willingness to accord substantial deferenc e to atrial court’s find ing of juror impartiality rests on our expecta

tion that the trial cou rt will conduct a suffici ent voir dire to determine the credibility of a juror professing to be impartial”). 1 As the Court of Appeals a pprehended, the District Cour t gave short shrift to th e mountainous evidence of public hostility. For Houstonians, Enron’s collapse w a s an event of once-in-a-generation proportions. Not only was the volume of media coverage “i mme n se” and frequently intemperate, but “the sheer number of victims” created a climate in which animosity toward Skilling ran deep and23 Cite as: 56 1 U

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### the desire for convictio nwas wide ly shared. 554 F. 3d, a t 559–560. The level of public animus toward Skilling dwarfed that present in cases such as Murphy and Mu’Min

. The pre

trial publicity in those cases consisted of dozens of news reports, most of which were “largely factual in nature.” Murphy , 421 U. S., a t 802. There was no in dication th at the relevant communities hadbeen captivated by the cases or ha d adopted fixed views about the defendants. In contrast, the number of media reports in this c a se reached the tens of thousands, and full-throated denunciations of Skilling were common. The much closer analogy is thus to Irvin , which similarly featured a “barrage” of media coverage and a “huge .

. . wave of public passion,” 366 U. S., at 725, 728, although eve nthat case did not, as here, involve direct harm to entire segments of the community. 10 

### Attemptin gto distinguish Irvin , the majority suggests that Skilling’s economi coffenses were less inc e ndiary than Irvin’s violent crime spree andthat “news stories about Enron contained nothing resemb ling the horrifying information rife in reports about Irvin’s rampage of robberies and murders.” Ante , at 28. Along similar lines, the Di strict Cour tdescribed “the facts of this case [as] neither heinous norsensationa l.” App. to Brief for United State s 10a. The majority al so points to the four years tha t passed between Enron ’ s declaratio n of bankru ptcy and th e start of Ski lling’s trial, asserting that “the de cibel level of media attention diminished som e what” ove rthis time. Ante , at 17. Neither of these arguments is persuasive. First, while violent cri mes may well provoke widespread community outrage more readily than crimes involvin g monetary loss, economic crimes are certainly capable of

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10 One of Skilli ng ’s ex perts noted tha t , “[i] n cases inv o l v ing200 or
mor ear tic l es, tr ial judg es g r anted a change of venue 59% of the ti me. ” App. ¶30, p. 611a.24 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### rousing public passions, particularly when thousands of unsuspecting people are robbedof their livelihoods a n d retirement savings. Indeed, the record in this case is replete with examples of visceraloutrage to ward Skilling and other Enron executives. Se e, e.g. , Record 3994 6 (front-page, eve-of-trial story describing “ t h e hurt an d anger and resentment .

. . churn[ing] inside” the people of Houston). Houstonians compared Skilling to, among othe r things, a rapist, an axe murderer, and an Al Qaeda terro rist. 11 

### As one commentator observed, “[i]t’s a sign of how shocked Houstonians are abou tEnron’s ignominious demise that Sept. 11 can be invoked—and is frequently— to explain the shockof the company’s collapse.” 3 Supp

. Record 544. The bad bl ood was so strong that Skilling and other top executives hired priva t e securityto protect themselves from persons inclined to take the law into their own hands. See, e.g. , App. 1154a(“After taking the temperature of Enron’s v i ctims, [a local lawyer] says th e Enron executives are wise to take security pr ecautions”). Second, the passage of time did little to soften commu

nity sentiment. Contrary to the Court’s sug g estion, ante , at 17, this case in no way resembles Yount , where, by the time of the defendant’s retrial, “prejudicial publicity [had] greatly diminished” and community animus had signifi

­

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11 See, e.g
. , 554 F. 3d, at 5 59, n
. 42 (“I’ m liv i d , abso l u t elyl iv i d .

. . . I hav elost myentir efr ig gi n’ r e tir e ment to these people. They hav e r a ped al l of u s ” (in t er n a l qu otation mar k s omit ted)); Ap p. 382 a ( “ Hu r t

ing t h a tm a n yelderly peo p le s os e ve rel yis, I feel, the equivalent of bein ganax e mu r d er er
. His ac tion s wer e ju st a s h a r m fu l as anax e mur d er erto the [c ommunity]” (alterat ion in original)); id ., at 115 2a– 115 3a (“No t h av i n gth e st u ff of su icidebombers, Enron’s exe c utive pilots took fulladvantage of golden parachutes to bai l ou t of their highfly i ng c o r p or a t e jet afters e ttingthe c r aft on a c o urse to financ ial obliv ion

. In a bu sin e s s ti me fr ame, En r o npan c aked fasterth ant h e twin tower s ”); id ., at 1163a(n otin g th at “Skill in g ’ s pictu r e tu rn ed up alon g s ide Osa m a binLaden ’ s on ‘ W an ted’ poster s in sid eth e c o mpany h e adqu ar ter s ” )

.25 Cite as: 56 1 U

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### cantly wan e d. 467 U. S., at 103 2; see also ibid . (in th e months preceding th e defendant’s retrial, newspaper reports about the case averaged “l ess than on e article pe r month,” and public interest was “minimal”). The Enron story was a continuing saga, a n d “publici t y remained intense thr o ughout.” 554 F. 3d, at 560. N o t only di d Enron’s do wnfall generate wall- to -wall news coverage, b u t so too dida success ion of sub s equent Enron-related events. 12 

### Of particular note is the hi ghly publicized guilty plea of codefendant Causey just weeks before Skilling’s trial. If anything, th e time that elapsed between the bankruptcy and the trial made the task of seating an unbiased jury more difficult, not less. For many members of the jury pool, eac hhighly publicized Enron-related guilty plea or conviction likely served to increase their certainty that Skilling too had engaged in—if not masterminded—cr i minal acts, particularl y given tha tthe media

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12 Amon gth e h i gh ligh t s: In 2002, Skil lin gtestified befor e Con g r e ss, a n d other Enron exe c utive s invoke d theirFifth Ame n dment r i gh ts; Enron a u dit o r Art h u rAnd e rs en wa s in dict ed, t r ied, convict e d, a n d sentenced on charges of obstruction of justice; the Enron Task Force charged Enro n CFO and S k illing-protég é Andrew Fast ow with fraud, money la undering, a n d othe r crimes ; and at least two Enron employee s pleaded g u iltyonfr au d an d taxc h ar g e s. In20 03, t h e En r o nTas k Force indictednumerous E n ron empl oye e s, including Ben Glisan, Jr. (t he com p a n y’ s t r ea s u rer), LeaFa st ow(wife of Andrew a n d an assi stan t t r ea s u rer), a n d m o re t h a nh a lf a do zen ex ecutives of En ron Broadban d Services; several Enron employees entered guilty pleas and received pris on s e nt ences ; a n d Enron filed its ba nkrupt cy reo r g a niza t i on pla n
. In 2004, Andrew and Le a Fastow both pleaded g u ilt y ; Skillingand Ca us ey were indict ed in Feb r ua ry; as u pers eding indict m e nta d ding Lay was filed in July; a number of additi onal Enron e m ployees entered guilty pleas; and former Enron em ployees and Merrill Lynch bankers were defenda n ts in a 6

- week tria l in Hous ton conce r nin ga nEnron dea l in v o lv in g th e sale of Nig er ia nbar g e s. In2 005, a 3- mon t htr ial was h e ld in Houston for five executiv es of Enron Broa db a n d S e rvices ; va riou s pretrial proceedings occurredin the r un up to the tri a l of Skill ing, Lay, and Causey; and, three wee k s beforethe scheduled trial date, C a usey pleaded guilty to securities fraud.26 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### coverage reinforced this view. See supra , at 7– 8. The trial of Skilling and Lay was the culmination of all that had come before. See Record 40002 (noting that “prosecutors followed the classic pattern of working th eir way up through the ranks”). A s the Chronicle put it in July 2005, shortly after the trial of seve ral Enron Broadb and Service s executives ended without convi ctions, “The real trial, the true measu r e of justice in the Enron saga, b e gins in Jan uary. Let the small fry swim fre e if need b e
. We’ve got bigger fish in need of frying. ” App. 1460a(paragraph break s omitted); see also ibid . (“From the beginning, the Enron prosecution has had one true measure of success: Lay and Skilling in a c o ld steel ca ge”). Any doubt that the preva iling mindset in the Houston community remained overwhelmingly negati ve was dispelled by prospective jurors’ responses to the writt e n questionnaires. As pr eviously in dicated, supra , at 5–7, more than one-third of the prospective jurors either knew victims of Enron’s collapse orwere victims themselves , and t w o-th irds ga ve r e sponses suggesting an antidefendant bias. In many instances their contempt for Skilling was palpable. See nn. 4, 6, supra
. Only a sma ll fraction of the prospective jurors raised no red flags in their r e sponses. And this was before Cau s ey’s guilty plea and the flurry of ne ws reports that ac companied the approach of trial. One of Skilling’s experts, a political scientist who had studied pretrial publicit y “for over 35 years” an d consulted in more tha n200 high-profile cases (in which he had recommended against venue changes more often th an not), “c[a]me to the conclusion that the extent and depth of bias shownin these q u estionnair e s is the h i ghest or at least one o f the very highest I have ever encountered.” App. ¶¶2, 7 , pp. 783a, 785a (emphasis deleted)

. 2 Given the extent of the antipathy evident both in the27 Cite as: 56 1 U

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### communityat lar g e a n d in the r e sponses to the writte n questionnaire, it was critical fo r the District Court to ta ke “strong measures” to ensure th e selection of “an impartial jury free from outside i n fluences.” Sheppard , 384 U. S., at 362. As this Court has recognized, “[i]n acommunity where most veniremen will admit to a disqua li fying prejudice, the reliability of the others’ protestati ons may be drawninto question.” Murphy , 42 1 U. S., at 803; see also Groppiv. Wis c onsin , 400 U. S. 5 05, 510 (1971) (“ ‘[A]ny judge who has sat with juries k n ows that in spite of forms they are extremely lik ely to be i m pregnated by the environing atm o sphere’ ” (q uoting Frankv. M a ng um , 237 U. S. 309, 349 (1915) (Holmes, J., dissenting))). Perhaps because it ha d underestimated the public’s antipathy towa rd Skilling, the District Court’s 5-hour voir di rewas ma nifestly insufficient to identifyand re move biased jurors. 13 

### As an initial matter, important lines of inquiry were not

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13 The major i typoints out t h at the ju r yselec t ionpr oc esses inth e three pre v ious Enron trials that ha d b een held in Ho us ton weres i milarly brief. See ante , at 23. The circumstances of those cases, however,
were ve ry diff erent

. In pa rt icula r , the def e ndants had not been person

allysu bjec tedto an y t h i n g appr oac h ing th e withering public criticism that had beendirected at Skilling an d Lay. As earlier noted, see, e. g
. , supra , at 25– 26, it was the trial of Skilli ng and Lay that was widel y s een a s t h e clim a c t i c eventof t h e Enron s a ga
. Accordingl y, m yconclus i on tha tthe jury s e lection proces s in this unus ua l ca s e did not s u ffice to select an imparti a l jury does no t cast doubt on the adequacy of th e processes used in the earlier Enron prosecutions.

Moreove r , in referencing thelength of the voir direin this case, I d o not mean to s u g g e st that leng th sh ould b ea principal measure of th e a d eq ua cy of aj u ry s e lect ion process. Tri a l cour ts, incl uding this one , s h ould b ecom m e nded for s t riving t o be effic i ent, but theymust alway s take c a r e to e n sur e that theirex peditiousness doe s no t c o mpr o mise a defendant’ s fai r -tr i al r i gh t. I also ex pr ess no v i ew with r e spec t to c o ur tled versus attorney-led voi r dire

. Federa l Rule of Criminal Procedure 2 4 ( a) gives dis t rictcourt s dis cret i on to choose between these options,
a n d I have no doub t tha teither is cap abl e of producing an i m parti a l jury even in hi gh profile cases so lo ngas the tr ial c o ur t a s s ur es that the scope of the vo ir di re is tailor e d to the c i rc umst anc e s.28 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### pursued at all. The majorityaccepts, for instance, that “publicity about a codefendant’s guilty plea calls for i n quiry to guard again s t actual prejudice.” Ante , at 1 9

. Implying that the District Co urt undertook this inquiry, the majorit ystates that “[o]nly t w o venire members recalled [Causey’s] plea.” Ibid

. In fact, the court asked very few prospective juror s any questions directed to th eir k n owledge of or fe elin gs about that event. 14 

### Considering how much news the plea generated, many more than two venire mem b ers were li k e ly aware of it. The l a ckof questioning, however, makes the prejudicial impact of the plea on those jurors impossible to asse s s
. The court also rarely aske d pro s pective ju rors to describe personal interactions they may have ha d about the case, or to consider whether th ey might h a ve difficulty avoiding discussion of the case with family, friends, or colleagues during the course of the lengthytrial. Th e tidbits of i n formation that trick led out on t h ese subjec ts provided ca use for concern. In response to general mediarelated questions, several pros pective jurors volunteered that they h a d spoken with others about the case. Juror 74, for example, indicated that h e r husband was the “ne w s person,” th at they had “talked ab out it,” that she had al so heard things “from work,” and that what she heard was “all negativ e , of course.” App. 94 8a. The co urt, howeve r, did not seek elaboration about the substance of these interactions. Surely many prospective jurors had similar

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14 J u ror 3 3 b r oughtup t h e pleain res p ons et ot h e Dis t rictCourt ’ s question abo u t whether he “recall[ ed] listening to a n y pa rticular pr og r a ms abo u tth e c a se.” App. 88 8a. J u r o r96, mean wh ile, told th e court tha the rea dthe “whole” Hous ton Chronicle eve r yda y, includin g “all the ar tic l e s aboutEnr o n.” Id. , at 9 9 2 a
. The court, ho wever , did not ask any questi ons designed to elicit information about the Causey plea. Instead, Juror 96 remarked on the plea only after Skilling’s counsel managed to squeeze in a fo llow-up as to whether he had “readabou t any guilty pleas in this case ov erthe last month ortwo.” Id ., at 993 a.29 Cite as: 56 1 U

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### conversations, particularly once they learned upon receiving the written questionnaire tha tthey might end up on Skilling’s jury. Prospective jurors’ pers onalinteractions, moreover, may well have left them with the sense that the community was counting on a conviction. Yet this too was a subject the District Court did not adequately explore. On the few occasions when prospective jur o rs were asked whet her they wouldfeel pressure from the public to c o nvict, they acknowledg ed that it might be d i fficult to r e turn home after delivering a not-guilty ve rdict. Juror 75, for instance, told the court, “I think alot of people feel that they’re guilty. And maybe they’re expecting something to come out of this trial.” Id ., at 956 a. It would be “tough,” she recognized, “to vot e not guilt y and go b a ck into th e community.” Id ., at95 7a; see als o id ., at 852 a (Juror 10) (admitting “some hesitancy” about “tellin g people the governmentdidn’t p r ov e its case”). With respect to potent ial nonmedia sources of bias, the District Court’s excha n ge with Juror 101 is particularl y troubling. 15 

### Although J u ror 101 responded in the negative when asked whether s h e had “rea danything in the newspaper that [stood] out i n[her] min d ,” she volunteered that she “just heard that, betweenthe two of them, [Skilling and Lay] had $43 million to contribute for their case and that there was an insurance policy tha tthe ycould coll ect on, also.” Id ., at 998a. This inf o rmation, she explained, “was just something I overheard today

—other jur o rs talking.” Ibid

. It seemed suspicious, she i n timated, “to have an insurance policy ahead of time.” Id ., at 999a. Th e court advis e d her that “most corporations provide insur

ance for th eir officers and direct ors.” Ibid

. The cour t, however, d i d not investigate the matter further, even

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15 Portions of the voir dire t r a n s cripterron eous l y refert ot h is prospec tiv eju r o r as “Ju r or110. ” See, e. g. , id ., at 996 a.30 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### though it h a d earlier instructe d p r ospective j u rors not t o talk to eachother about the case. Id ., at 843a. It is thus not appare nt whether other pr os pective juro rs also overheard the information and whether they too believed thatit reflected unfavorably on the defendants; nor is it apparent what other outside informationmay ha ve been shared among the venire members. At th e very least, Juror 101’s statements indicate that the court’s questions were failing to bring to light the extent of jurors’ exposure to potentially prejudicial facts and that so me prospective jurors were having diffi culty following the court’s directives. The topics that the Distri ct Cour t did cover were addressed in cursory fashion. Most prospectiv e jurors wer e asked just a few yes /no que stions about their general exposure to media cov e rage and a handful of addition al questions c o ncerning any responses to the written questionnaire that suggested bias. In many instances, their answers were unenlightening. 16 

### Yet the court ra rely sought to draw them o u t withope n -ended questions about their impressions of Enron or Skilling and showed limited patience for counsel’s followup efforts. See, e.g. , id ., a t

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16 The court ’ s e x cha n gewit hJ u ror2 0 (w ho s a t on the jur y) is ty pic a l: “Q. Do y o u r e memberr e adi n gany par t ic ularar tic l es ab out this c a se or Mr. Lay or Mr. Skilling?

“A. Not until just recently this week, but nothing— “Q. And there have been a lo t of articles this week. “A. Yeah.

“Q. Do y o ur e call an ypar t ic u l arar ti cles you’ve read in the last week or so?

“A. Not word f o r wo rd, no

. “Q. Did y o u r e ad all the ar tic l es in the Sunday“Chr onic le”? “A. Some of them. “Q. Whichone s do you remember reading? “A. The one about the trial, I thin k, and how the tr ial was g o ingto work.” Id ., at 873 a– 874 a.31 Cite as: 56 1 U

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### 879a, 966a. 17

### Whenprospective ju rors were more forthcoming, their responses tended to highlight the ubiquity and negative tone of th e local new s coverage, thus underscoring the need to press the more guarded members of the venire for further information. 18 

### Juror 17, for example, mentioned hearing a radio program that very morning in which a former Enron employe e compared persons who did not think Skilling was guilty to Holocaust deniers. See id ., at 863a (“[H]e said he thought that he would find them guilty auto m atically if he was on the jury because he said that it would be worse than a German trying to say th a t they didn’t kill the Jews”). 19 

### Other jurors may well have encountered, and beeninfluenced by, similarly incendiary rhetoric. These defic i encies in t h e form and content of the voir

——————

17 The majority’s criticism of S k illing’ s counsel for fail ing t oaskquestions of man yof the pros pective jurors , cf. ante , at 23– 24, is th u s m i s p la ced. Given t h e Dis t rictCourt ’ s exp r es s wa rning ea rly in t h e vo ir direth at it wou l d n o t all o w c o u n s el “to ask in div i d u al qu estion s if [th e y] abu se[d]” th at r i gh t, App. 879 a, c o un sel c a nh a r d l ybe blamed for dec liningto t e st the c o ur t’ s boundar ies at every turn. Moreover, the court ’ s perfu n ct ory ex cha n ges wit hpros pect ive j u rors oft e n gave couns el nocle a r av enue fo r f u rt herperm is s ib l e inq u iry. 18 Althoughthe Distr i c tCour t under estimat e d the ex tent of the c o mmunity hos t ility, it wa s certa i nly a w a r e of the ubiqui ty of the pretrial publicity, acknowledging that “allof us h ave been exposed to substantial medi a a t t e n t ionabou t th is c a se.” Id ., at 841 a. Th e c o u r t ev en made an offhand remark ab out one of th e prior Enro n prosecutions, “the Nigerian barge case,” apparentlyexpecting that the prospective j u rors would u n ders t a nd t h e referen c e. Id ., at 840 a.

19 Takin ga more defen d an t-fav o r able lin e th anmost pr ospec t iv e ju

rors , J u ror 1 7 s t at ed t h a the “ t h ough t the g u y [on the r a dio] was pr etty
nar r o w minded,” that “ev e r y one shouldb econs idered innoce nt tota lly until theyg e t a c h anc eto c o me [to] c o ur t , ” and tha t the Gov e r n ment might have be en overzealous in some of its Enron-related prosecutions. Id ., at 86 3a–8 64a. He adde d, h o wev e r, th at h e“be liev e [d] th er e wa s pr obablyso me ac c o u n t in gfrau d [at En r o n ] .” Id ., at 864a. The Dis t rict Cour t denied the Gov e r n ment’ s r e qu es t to rem o ve J u ror 1 7 for ca us e, but he did not ultima telysit on the jury

.32 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### dire questions contributed to a deeper problem: The District Court f a iled to make a su fficiently criti cal assessment of prospecti ve jurors ’ a ssurances of impartiality. Although the Court insists otherwise, ante , at 26, the voir dire tra nscript indic a tes that the Dis trictCourt essentially took jurors at their word when they promised to be fair. Indeed, the court declined to dismiss for cause any prospec tive juror who ultimately gave a cl ear assurance of impartiality, no matter ho w muche quivocation preceded it. Juror 29, for instance, wrote onher questionnaire that Skilling wa s “not an honest ma n.” App. 881a. During questioning , she acknowledgedhaving previo usly thought the defendants were gu ilty, and she disclosed that she lost $50,000–$60,000 in h e r 401(k) as a result ofEnron’s collapse. Id ., at 880a, 883a. But sh e ultimately agreed th a t she would be able to presume innocence. Id ., at 881a, 884a. Noti ng that she “blame[d] Enron for the loss of h e r money” and appeared to have “u nshakeable bias,” Skil ling’s counsel challeng ed her for cause. Id ., at 885a. The court, howe ver, declined to re move her, stating that “she answered candidly she’s going to have an op en mind n o w” and “agree[ ing]” with t h e Government’s assertion that “ w e have to ta ke her at her word.” Id ., at 885a–886a. 20

### A s

——————

20 The major i ty atte mpts to d o wnplayth e s i g n ific an c eof Ju r o r29 by noting that s h e did not end up onthe jury because Skilling used a per e mptor ychalleng e to remov eher. See ante , at 30, n

. 31. Th e major i ty mak e s a si milarp o int with r e sp ec t to otherv e nir emember s who wer e not ultima telysea t ed. See ante , at 24, n

. 24. Th e c o mmen t s of these venire members, ho wever, are relevant in as ses s ing the impa rtial ityof the seated jur o r s , who wer esimilar l y“p ar t of a c o mmunity deeply hostile to the accused” an d who mayhav ebeen “unwittingly influenced b yi t .” Murphyv. Florida , 421 U

. S. 794, 80 3 ( 197 5); see a l so Irvinv. Dow d , 366 U. S. 717, 728 (19 61). M o r eov er , th e fac tth at th e Dis t rictCourtfa iled t oremove pers ons a s dub i ous l y q u a lified as J u ror 29 goes directly to the adequacy of its voir dire

. If Ju ror29 made i t thr o ugh to the end of the sel e c t ion pr oc ess, it is difficult to have co nfidence in the i m parti a lity of the juro rs who sat, especi ally given ho w33 Cite as: 56 1 U

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### this Court has made plain, jurors’ assurances of impartiality simply are not entitled to this sort of talismanic signifi

cance. See, e.g. , Murphy , 421 U. S., at 800 (“[T]he juror’s assurances that he is equal to th[e] task cann ot be dispos itive of the accused’s rights”); Irvin , 366 U. S., at 72 8 (“Where so many, so m any times, admi[t] prejudice, .

. . a statement of impartiality can be gi ven little weight”). Worse still, the Distri ct Court on a number of occasions accepted de clarations of impa rtiality that were equivocal on their face. Prospective jurors who “hope[d]” they could presume innocence and did “not necessarily” think Skilling was guilty were permitted to remain inthe pool. App. 932a, 857a. Juror 61, for instance, wrote of Lay on her questionnaire, “Shame on him.” Id ., at 931 a. As ked b y the court about this, s h e stated t hat, “innocent or guilt y, he was at the helm” and “should have kno w n wha twas going on a tthe comp any.” Ibid.;see also id ., at 934 a (Skilling is “probably” “in the sa me boat as ” Lay). The court then asked, “can you presume, as you st art this trial, that Mr. La y is innocent?” Id ., at 9 32a. She re sponded, “I hope so, but you know. I don’t know. I ca n’t honestly answer that one way or the other.” Ibid.; se e a l s o id ., at 933a (“I bring in my past history. I bring in my biases. I would like to think I co uld rise above those, but I’ve neve r been in this situation before. So I don’t kno w how I could honestly answer that q u estion one way or the other. .

. . I do have some concerns”). Eventually, however, Juror 61 answered “Yes” when the court as ked if she would be a b leto acquit if she had “a reasonable doubt that the defendants are guilty.” Id ., at 933a–934a. Challenging her for cause, defense counsel insistedthat they hadnot received “a clear and unequivocal answe r” about her ability to be

—————— little i s kn own abou tman yof th em. Cf. 6 LaFav e§23.2(f), at 288 (“Th e r e spon ses of t h ose n o t se ate dc a st s l i ght on the credibili ty of the se ate d jurors whowe re familiar wit hthe same publicity”).34 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### fair. Ibid

. The court denied the challenge, stating, “Yo u k n ow, she tried.” Ibid

. 3 The majority ta kes solace in the fact that most of the persons actually seated as jurors and altern ates “specifically stated that they had pa id scant attention to Enronrelated news.” Ante , at 24–25, and n. 26. 21 

### In context, however, th ese general declarat ions reveal little about the seated jurors’ actual knowledge or views or the possibl e pressure they might have felt to convict, an d thus cannot instill confi d ence that the jurors “were not under [the] sway” of the prevailing community sentiment. Cf. ante , at 25. Jurors who did no t “ g et into details” of Enron’s co mplicated accounting s c hemes, App. 856a, nevertheles s k n ew the o u tline of the oft-repeated story, including that Skilling and Lay had been castas the lea d ing villains. Juror 63, for instance, told the court that sh e “may have heard a little bit” about Enron-rel a ted litigation but had not “really pa[id] attention.” Id

. , at 935a. Yet she wa s clearly awa r e of some specifics. On her questionnair e , despite stating that she had notfollowed E n ron-related news, she wrote about “whistleblowers and Arthur Ande rsen lying ab out Enron’s accounting,” and she expressed the view that Skilling and La y “probably kne wthey were breaking the law.” Supp. App. 105sa–106sa. Durin g questioning , which lasted barely four minutes, the District Court obta ined no meaningful information about th e actual exte nt of Juror 63’s fam iliarity with the case or the basis for her belief in Skilling’s guilt. Yet it nevertheless

——————

21 The major i tyalso notes tha tabout two-th irds of the seated jurors
an d alter n ate s (11 of 16) h a d n oper s on al En r o n c o nn ec tion

. Ant e , a t 24, an d n

. 25. Th is mean s, of c o ur se, th at fiv eof th e seated ju r o r s an d
a l terna t es did have co nnect ions to friends or collea g ue s who ha d los t jobs ormon e yas a r e su lt of En r o n ’ s collapse—a f a ct that does not strik e m ea s pa rt icula r ly rea s s u rin g
.35 Cite as: 56 1 U

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### accepted h e r assurance that she could “absolutely” presume innoc e nce. App. 937a. 22 

### Indeed, the DistrictCo urt’s anemi c questioning didlittleto dispel similar doubts about the impartiality of numerous other seated jurors and alternates. In my estimation, more than half of th ose s e atedmade written and oral comments suggesting active antipathy towa rd the defendants. The majority thus misses the mark when it asserts that “Skilling’s seated jurors .

. . e x hibited nothing like the display of b i as shown in Irvin .” An t e , a t29. Juror 10, fo r instance, reported on his writte n question naire that he k n ew several co-work e rs who owned Enron stock ; that he personally may have owned Enro n stock th rough a mutu al fund; that he heard and read ab out the Enron cases fro m the “Housto nChronicle, all three Houston news channels, Fox news, talking with friends [and] co-workers, [and] Texas Lawyer Magazi ne”; that he believed Enron’s collapse “was due to greed and mismanagement”; that “[i]f [Lay] did n o t know wh at was going on in his company, h e was really a poor ma nager/leader”; and tha tthe defendants were “suspect.” Supp. App. 11sa–19sa. During questioning , he said he “th[ought]” he co uld presume innocence a n d “believe[ d]” he could put the Government t o its proof, b u t he als o acknowledged that he might have “some hesit ancy” “in te lling people the government didn’t prove its ca se.” App. 851a–852a.

——————

22 As one of Ski lling’s jury experts ob served, there is a “ t endency i n voir dire of jury pool members in high-profile c a ses to minimize thei r exposure to media, their knowledge of prejudicial infor m ation, and a n y biases they may have.” Ap p. 763a; see also id ., at 637a (“Thos e who perceive themselves or wishto be pe rceived a s good cit i zens a r e reluctant to adm i t theyc a nnot be fair”). For this r e ason, the fac tthat “none of th e seated ju r o r s an d alter n ates checke d the ‘yes’ box” on the written questionnaire when “asked whethe rthey‘ h a[d] an opin ionabou t [Skilling],’ ” ante , at 26, is of minimal si gnificance , particularly give n that the Cau s ey plea andthe i m pe ndi n g trial received significant
m e diacovera ge after the questionnair es wer e submitted.36 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### Juror 11 wrote that h e “w ork [ ed] with someone who worked a t Enron”; th at he got Enron-relat e d news from the “Houston Chronicle, Channel 2 News, Channel 1 3 News, O’Reilly Factor, [and] talki n g with fri e nds and coworkers ” ; t hat he regularly visited the Chronicle Web sit e ; that “greedon Enron’s part” cau s ed the company’s co llapse; and that “a lot of people were hurt financially.” Supp. App. 26sa–30sa. During que stioning, he stated tha t he would h a ve “no problem” requiring the Go vernment to prove its case, but he also toldthe court that he believed Lay was “greedy” and that co rporate executives are ofte n “stretching the legal limits .

. . . I’m not goin g to sa y th at they’re allcrooks, b u t, you kn ow.” App. 857a, 854a. Asked whet her he wou l d “star[ t] t h e case wit hsort of a n inkling that because [ L ay is] greedy he mu st have done something i llegal,” he offere d an indeterminate “not neces

sarily.” Id ., at 857. 23

——————

23 Ma nyot her s e a t ed j u rors and a l t e rna t es expres s e d s i mila rly t r oubling sentime n ts. See, e. g. , Su pp. App. 57sa

– 6 0 sa (Ju r or20) (obtain e d Enron-rela t e d news fromt h e Chronicle an d “loc al n e ws stat ion s ”; blame dEnron’s collapse on “[n]ot enou gh corporate controls or effective audit procedures to pr event mismanagem ent of corpora t e assets”; an d was “ang r ythat so manyp eople los tthei rjobs and th eirr e tir e ment
sav i n g s”); id ., at 72 sa– 7 5 s a(Ju r or38) (followed En r o n - r e lated n e ws fromva rious s o urces , inclu d ing t h e Chro nicle; wa s “ a ngry ab o utwh a t happened”; and “fe[lt] bad f o r those that worked hard and invested i n the c o r p [or a tion] onlyto ha v eit alltakenaway”); id ., at11 7s a

– 1 1 8 sa (J uror 6 4) (ha ds e vera l friends who work ed a tEnron and los tmoney ; hea r d ab o utthe Enron ca s e s on t h e news ; des crib e d t h e colla ps e as “sad” bec a use “people los tjobs [and] money

—lots of money” ; and believ e d the G o v e r n ment “did the r i ght thing” in its investigat ion); id ., at 177 sa–18 1 s a (J u r or87) (r ec eiv e d En r o n - r e lated n e ws fr om t h e Chronicle, Channel 13 news, the O’ReillyFactor, Internetnews source s, and friends, family, and co-workers ; att r ibuted Enron’s collapse to “[p]oormanag e ment [and] b a d judg ment—g r eed”; lam e nted “[t]he s a d state of the long-term loyal employees who are left with nothing in the i r ret i rem e nta ccount s ” ; a n d “ a dm ire[d] [t he] b r av ery” of Enron w h is t l eblower Sherro n Watkins “fo rbringingthe situa t ion to t h e attention o f the public, which stopped thin gs from getting worse”); id ., at 191s a–37 Cite as: 56 1 U

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### While s e veral seated jurors and alternates did not make specific comments suggesting prejudice, their written and oral responses were so abbreviated as to ma ke it virtuall y impossible for the District C o urt reliably to assess whether th ey harbored any latent biases. Juror 13, for instance, wrote on his questio nn aire that he had heard about the Enron cases from the “[n]ews.” Supp . App. 42sa

. The court questioned him for two minutes, during which time he con f irmed that he had“heard what’s on the n e ws, basically,” including “that the trial had mov e d from the 17th to the 31st.” He added that the story “was all ove r the news on every detail of Enron.” App. 8 58a–860a. No meaningful information about his knowledge or attitudes was obtained. Similarly, Juror 78 wrote that she had n o t followed Enron-related news but was aware that “[m]an y people lost their jobs.” Supp. App. 151sa. Th e court que stioned her for less than 90 seconds. During th at time, sheacknowledged that she had “caught glimpses” of the coverage and “kn[e]w gen e rally, you know, that the compan y went bankrupt” and th at there “were some employees that went off and did their own businesses.” App. 969a. Little more was learned. 24

—————— 195 sa (Ju r or90) (h ear dEn r o n - r e late d ne ws from his wife, co-wor kers , and telev i sion; wr ote that “[i]t’ s not r i gh t forsomeone .
. . to take” awa y the moneythat the “s mall av er ag e wor k ersav e s .
. . for r e tir e ment al l his life”; and described the Gove rnment ’s Enron inve stigat ion as “ a good thing”); id ., at 221s a–22 5s a (Ju r or113) (o bta i n e d in for m atio n about Enron from a “co-worker [who ] w a s in t h e j u ry pool for Mr s
. Fastow’s trial ” ; worked for an employ er who lost money as a result o f Enron’s colla ps e; found it “s a d” tha tthe colla ps e ha d a f fected “s uch a hugenumber of people”; and though t “someone had to be doingsomething illegal”); id ., at 2 3 6 s a–23 7s a (Ju r or11 6) (kn e w ac o lleag u e wh o lost money in Enron’s collapse; obta ined Enron-rela t e d news from t h e “Houston Chronicle, Time Magazine, lo cal TV news [and] radio, frie nds, family, [and] co-worke rs, [and] in t e rnetnews s o urces ” ; a n d not e d that what sto o d out was “[ t ] he empl oyees and retirees that lo st their
sav i n g s”).

24 S e vera l ot herj u rors fell int ot h is ca t e gory. J u ro r 6 7 wrot e on his38 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### In assess in g the likelihood that bias lurked in the minds of at lea s t some of these seated j u rors, I fin dtelling the way in wh ich voir di re played out. When the District Court aske d the prospective jurors as a gr oup whether they had any reservations ab out their abilit y to presume innocence and put the Government to its pro o f, only two answered in the affirmative, and both were excused for
cause. Id ., at 815a–820a. The Di strict Court’s individua l questioning , though truncated, exposed disqualifying prejudices among numerous addi tional prospective juro rs who had ea rlier expressed no concerns about their impartiality. See n. 7, sup ra
. It thus strikes me as highly likely that at least some of the seated jurors, despite stating that they could be fair, ha rbored similar biases that a more probing inquiry would likely have exposed. Cf. Yount , 467 U. S., at 1034, n. 10 (holdin gthat the trial court’s “particularl y extensive ” 10-day voi r direassured t h e jury ’s impartiality). 25

—————— q u es tionna ire tha the ha d hea r d ab o ut Enron f r om theChronicle and “Internet new s s o urces
. ” Id ., at 133s a
. He was ques tioned for 90
s e conds , durin gwhic h time he indica ted tha the ha d rea da na r ticle on the Internet th e preceding night “abo ut the j u r ys e lection ta king pla c e today , stu ff li ke th at.” Ap p. 944 a. Ju r o r99 wr ote th at sh e h a d n o t hea r d orrea d ab o ut the Enr o n ca s e s a n d di d not “know a n ythingab o ut” Enron. Supp. App. 210sa. T h e Dist rict Court questioned her for barely one minute. She stated that she ha d “[n]ot r e ally” lear ned mor eabout the case, but added that sh e had heard “ t his and th at” from her paren ts. App. 995a– 99 6a. Th e c o u r t did n o t pr ess fu r t h e r.

25 The majority suggests tha t the fa ct that Skilling “chall enged only one of the seated jurors for cause” indicates that he didnot believe th e ot her j u ro rs w e re b i a s ed. An t e , a t3 0

. O u r de cis i ons , howeve r, dis t inguish claims involving “the partiali tyo f a ni n d iv i d u a lj u r o r” f r o m antec e dent c l aims d i r e c t ed at “the par t iali tyof the tr ial jur yas a whole.” Pattonv. Yount , 467 U. S. 1 0 2 5 , 1 036 (19 84); se e al so Frazierv. United States , 33 5 U. S. 497, 51 4 (1 94 8) (“[ T]h e two sor t s of c h allen g e[s] are distinct and are therefo r e to be de alt with separ a tel y”). If the jury
s e lection proces s does not, a s here, give adefenda n t a fa ir opportun ity to identify bia s ed jurors, thedefendant can hardly be fa ulted for failing t o m a ke for-ca us e cha llenges

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### The majority suggests, ante , at 17–18, 30, thatthe jury’s decision to acquit Skilling on nine relatively minor insid e r trading charges confirms its impartiality. This argument, however, mistakes partiality withbad faith or blind vindictiveness. Jurors who act in good faith and sincerely believe in their own fairness may neverth eless harbor disqualifyin gprejudice s
. Such jurors may well acqu it where evidence is wholly lacking, while s ubconscious ly resolving closer calls against the defendant rather tha n giving him the benefit of the doub t. Cf. Un ited S t ates v. McVeigh , 9 18 F. Supp. 1467, 1472 (WD Okla. 1996) (prejudice “may go unrecognized in thos e who are affected by it. The prejudice that may deny a fair trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiaryfacts resul t ing from an attribut ion to something not included in the evidence. That something has its most powerful effect if it ge nerates strong emotional responses”). In this reg a rd, it is si gnificant that the Government placed relatively little emphasis o nthe nineinsider trading counts during its closing argument, declining to explain its theory on those counts in any detail whatsoever. Record 37010. T h e acquittals on th ose counts thus provide scant basis for inferring a lack of prejudice. * * * In sum, I c annot accept the majority’s conclusion that voir dire g a ve the District Cour t “a sturdy f o undation to assess fitness for jury service.” Cf. ante , at 29. Take n together, the District C o urt’s fa ilure to cover c e rtain vital subjects, it s superficial coverage of other topics, and it s uncritical a cceptance o f assurances of impart iality leave me doubtful that Skilling’s jurywas indeed free from the deep-seated animosity that pervaded the community at large. “[R]egardless of the heinousness o f the crime40 SKILLING v. UNITED STAT ES Opinion of S OT OMAYOR , J. 

### charged, th e apparent guilt of the offender[,] or the station in life which he occupies,” our system of justice demands trials that are fair in b o th appearance and fact. Irvin , 3 66 U. S., at 722. Because I do not be lieve Skilling’s trial met this standard, I would grant him relief.