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Honest Services

The Champion

September/October 2010

Authors: Ross H. Garber

Many Questions Remain for Honest Services Doctrine

The Supreme Court has now limited the scope of the “honest services” provision of the federal mail and wire fraud laws, 18 U.S.C. § 1346.1 In Skilling v. United States,2 the Court held that the honest services statute, which had become a sort of prosecutorial Swiss Army knife, is now applicable only to bribery and kickback schemes and does not criminalize more amorphous unseemly conduct such as undisclosed self-dealing. Given that limitation, the Court determined that the honest services provision is not unconstitutionally vague. According to the Court in Skilling, “[a] criminal defendant who participated in a bribery or kickback scheme … cannot tenably complain about prosecution under § 1346 on vagueness grounds.”3 So the Supreme Court has brought clarity to honest services issues? Maybe not so much. The following are some initial reflections on the state of honest services law.

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