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Legislation Litigation White Collar Crime

Is an ‘Official Act’ An Element of Public and Private Corruption?

This article discusses cases that have begun to address whether “official act” is an element in a private honest services fraud prosecution.

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In recent years, prosecutions of public corruption have often centered on whether a government official committed an “official act.” The importance of that question derives from the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), in which the Supreme Court held that commission of an “official act” is required to sustain a conviction for honest services fraud and Hobbs Act violations. The Second Circuit has addressed the issue in several high-profile prosecutions of state officials. See, e.g.United States v. Silver, 948 F.3d 538 (2d Cir. 2020).

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