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Commentary: Public Corruption Prosecutions After Skilling

Main Justice

September 15, 2010

Authors: Ross H. Garber

Many in the white-collar defense bar viewed last term’s Supreme Court decisions about honest services fraud as a seismic event. In Skilling v. United States and two other honest services fraud cases, the Supreme Court determined that 18 U.S.C. § 1346 applied only to bribery and kickback schemes and not more amorphous unsavory conduct such as self dealing. With that clarification, the Court held that Section 1346’s proscription of any “scheme or artifice to deprive another of the intangible right of honest services” was not unconstitutionally vague. After all, wrote the majority in Skilling, “[a] criminal defendant who participated in a bribery or kickback scheme… cannot tenably complain about prosecution under § 1346 on vagueness grounds.”

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