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Honest-Services Fraud in the Wake of Skillings

By Robert Plotkin and Nicholas B. Lewis

The Supreme Court has tried again to restrict application of the honest-services fraud statute (18 U.S.C. ' 1346), which has been zealously used by prosecutors to target a wide swath of allegedly unethical behavior by public officials and private employees alike. In Skilling v. United States, the Court “pared” honest-services fraud to what the majority perceived as the provision's core: fraudulent schemes to deprive another of honest services through bribes or kickbacks. 130 S. Ct. 2896, 2928 (2010). The Court majority rejected the government's contention that the law also reached so-called “undisclosed self-dealing” by public officials and private employees. It warned Congress “to speak more clearly than it has” if it intends for the statute to cover undisclosed self-dealing. Justice Scalia, joined by two other Justices, agreed to reverse Skilling's conviction, but would have gone further and declared ' 1346 unconstitutionally vague.

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