If All Politicians Are Corrupt, but All Defendants Are Presumed Innocent, Then What? A Case for Change in Honest Services Fraud Prosecutions

Who steals my purse steals trash; 't is something, nothing; 'T was mine, 't is his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. (1) PROLOGUE On December 8, 2009, the Supreme Court heard arguments in United States v. Black (2) and United States v. Weyhrauch. (3) The Court has also granted certiorari in United States v. Skilling, (4) which it will hear this Term. Each case requires the Court to interpret 18 U.S.C. [section] 1346, an arrow in the Department of Justice's quiver for prosecuting corrupt politicians and businessmen. (5) Considering the issues presented, it seems that the Court intends to throw light on a subject it admonished Congress to "speak more clearly" about nearly twenty-two years ago in McNally v. United States, (6) in which the Court refused to extend federal mail fraud (7) to schemes to deprive the public of its right to honest and fair government. (8) Congress subsequently amended the statute in 1988 to include frauds that "deprive another of the intangible fight of honest services," (9) thereby reinstating any "honest services" jurisprudence preceding McNally. (10) Ever since, the question of what constitutes "honest services" has festered in the courts of appeals, which have adopted a variety of principles to limit the statute's reach, albeit not uniformly. (11) The resulting circuit split and post-McNally caselaw evinces concerns regarding vagueness, federalism, and how best to preserve the force of [section] 1346. (12) And so, regardless of how the Court decides these issues, this much is certain: a unifying definition for the "outer boundaries" (13) of honest services fraud, in light of [section] 1346's enactment, is long overdue. INTRODUCTION Are all politicians crooked? Are all captains of industry thieves? In the United States, where scandals in Washington, D.C. and on Wall Street make headlines (14) and movie plots, (15) can anyone be blamed for answering those questions affirmatively? Between print, television, radio, film, and Internet, Americans are regularly reminded that even white-collared professionals often have evil-meaning minds and evildoing hands. Indeed, many Americans assume that politicians and businessmen are corrupt--they are presumed guilty. (16) Certainly, an unsettling number of politicians misuse their offices--be it for money or interns--and lately Wall Street seems chock-full of swindlers looking to fleece unsuspecting investors. Nevertheless, honest politicians and fair-dealing businessmen do exist. (17) Regardless of how their cases are decided, Bruce Weyhrauch, Conrad Black, and Jeffrey Skilling fit the bill of high-profile citizens who are widely regarded as corrupt. (18) Weyhrauch was a lawyer and member of the Alaska House of Representatives, (19) Black was CEO of Hollinger International, (20) and Skilling was CEO of Enron Corporation. (21) Each man was indicted pursuant to 18 U.S.C. [section] 1346 for honest services mail fraud. (22) Another such individual is former Alabama governor, Don Siegelman, who was also indicted (and convicted) under [section] 1346. (23) Each man was charged with the same federal crime in a different circuit, and now seeks Supreme Court review of his case to decide whether honest services fraud may be fairly enforced against him. (94) What constitutes a "scheme or artifice to deprive another of the intangible right of honest services"? (25) The answer varies depending on the federal circuit in which a defendant is charged, and then it may be based on state law or subject to interpretation by a federal court. (26) At its core, the problem is that a comprehensive definition for "honest services" cannot be gleaned from the language of [section] 1346, or from case law, or from legislative history. (27) Each circuit has had to establish a judicial construction of honest services, (28) and the resultant split has been criticized as subjecting defendants to ad hoc standards of culpability by federal prosecutors and judges. …