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Honest Services Issues After Skilling - Honest Services after Skilling v. U.S. - PART III (us)

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Un article de la Grande Bibliothèque du Droit, le droit partagé.
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Catégorie: Etats-Unis > Droit américain > Criminal Law  > Corruption
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Auteurs : Richard C. Smith, Kimberly Walker, Mark Emery, Tracy DeMarco
Avocats au barreau du District de Columbia, D.C. Bar
Publié le 15/05/2011 dans Journal of the Bar Association of the District of Columbia (B.A.D.C.)





Voir aussi PART I of Honest Services after Killing v. U.S.: Less Is Still More, PART II of Honest Services after Killing v. U.S.: Less Is Still More et Final PART of Honest Services after Killing v. U.S.: Less Is Still More



Now that the dust is clearing, it is evident the Skilling decision places controls upon prosecutorial discretion. It likely eliminates prosecutions where there is no allegation that the defendant secured a benefit from a third party in exchange for fraudulent conduct. In such circumstances, it will be difficult, if not impossible, to characterize the conduct as involving bribery or kickbacks. For example, in Skilling, the prosecution alleged that Skilling engaged in fraudulent conduct to benefit his company and, indirectly, increase his own compensation. The Court’s decision appears to hold that none of the alleged conduct is covered by the statute, at least in the context of private actors. Beyond that specific set of facts, however, three of the nine justices remain unclear as to what, precisely, §1346 criminalizes. Justices Scalia, Thomas, and Kennedy made a powerful argument that the “honest services” statute was unconstitutionally ambiguous in all of its applications, [1] and the majority countered this view with no more than general assurances that pre-McNally case law and a few federal statutes will provide adequate guidance to guide “honest services” prosecutions going forward.[2]

Furthermore, as noted by the concurring opinion, the Court’s Skilling decision failed to address several underlying questions. Among others, the decision left open the issue of: (1) which duties, when breached, result in the deprivation of “honest services” when combined with a benefit from a third party; and (2) whether an “honest services” offense requires predicate breach of state law, federal law, or both. Resolution of these issues will depend on both interpretation of other federal statutes and a less-than-settled body of pre-McNally cases.

Against the backdrop of Skilling’s unanswered questions and the unsettled pre-McNally “honest services” jurisprudence, one wonders what the Supreme Court’s “honest services” guidance could have been. For example, in 2009, the Court denied certiorari in the Sorich case where defendants appealed their conviction for denying Illinois taxpayers of their “honest services” by fostering City Hall’s patronage system even though they made no money off the deal.[3] According to Justice Scalia’s dissent from denial of certiorari, the case presented two of the important limiting principles with which the circuit courts had wrestled—whether deprivation of “honest services” “requires a predicate violation of state law, and whether it requires the defendant’s acquisition of some sort of private gain.”[4] Skilling provided no explicit guidance on the “private gain” issue, and while the Court limited the statute’s reach, it did not do so through any effort to define the statute’s proscribed conduct, but rather on the basis of Congress’s understood intent to codify the deprivation of “honest services” offense in such situations based on pre-McNally case law. Further, the Skilling decision provides no guidance as to whether that requirement applies equally to public officials as it does to private individuals like Skilling.

Of course, cases filed and yet to be filed will help shape the honest services doctrine after Skilling. But, an initial look at its impact is available from Weyhrauch, Black, and several other cases the Court GVRed in light of Skilling.[5] When the Court GVRs a case, it is not a final determination on the merits,[6] but it does “indicate that, in light of ‘intervening developments,’ there was a ‘reasonable probability’ that the Court of Appeals would reject a legal premise on which it relied and which may affect the outcome of the litigation.”[7] It is not uncommon for the courts of appeals to reach the same decision on remand, and therefore not too much may be read into the mere fact of a GVR order. But because the Court only GVRs in cases where it believes there was a “reasonable probability” of a different outcome, it is worth looking at some of the cases GVRed after Skilling to track early developments in the Skilling fallout.


A. Siegelman and Scrushy: Is Quid Pro Quo Required For Bribery-Related Honest Services Charges?

In light of its Skilling decision, the Court granted, vacated, and remanded two petitions arising from the Eleventh Circuit’s decision in United States v. Siegelman, which affirmed the convictions of the CEO of HealthSouth Corporation, Richard Scrushy, and former Alabama Governor Don Siegelman. Both petitions presented the issue of whether the government must prove an “express” quid pro quo to obtain a conviction for bribery-related “honest services” offenses. The cases themselves revolved around allegations that Scrushy, Siegelman and other defendants engaged in bribery by making and executing a quid pro quo agreement whereby Scrushy gave then-Governor Siegelman $500,000 in campaign contributions in exchange for an appointment to a state health-care board.[8] With regard to the bribery charges, the jury was instructed “that there must be proof that the official and the contributor ‘agree that the official will take specific action in exchange for the thing of value.’”[9] The “honest services” mail fraud and conspiracy charges incorporated this bribery charge, but further required a finding that Scrushy deprived another of the right to a public official’s “honest services” by using the seat to further HealthSouth’s interests.[10] After a jury trial, Scrushy and Siegelman were convicted, among other counts, of four counts of “honest services” mail fraud and conspiracy.[11]

The Eleventh Circuit affirmed the “honest services” convictions of both men arising from the bribery allegations.[12] Over the defendants’ objections that an “express” quid pro quo agreement must be proven, the court of appeals found that a jury could infer the actors’ state of mind from the circumstances surrounding their conversations and actions, and that there was sufficient evidence at trial to permit a jury to conclude that Scrushy and Siegelman “explicitly agreed” to a quid pro quo that proved the bribery, conspiracy, and mail fraud counts.[13] However, the Eleventh Circuit reversed Siegelman’s conviction on two other mail fraud counts, which charged him with causing “a mailing that helped to execute a scheme between himself and Scrushy to deprive the State of Alabama of its right to their “honest services” by conspiring for Scrushy to use the position on the board for self-dealing to advance HealthSouth’s interests.[14] In so doing, the Eleventh Circuit held that there was no evidence “remotely sufficient to permit a jury to infer that Siegelman agreed to a broader self-dealing scheme.”[15]

Scrushy and Siegelman separately sought review by the Supreme Court to determine whether McCormick v. U.S., 500 U.S. 257 (1991), required the Government to prove an “express” quid pro quo that may not be implied from circumstantial evidence. Each argued that this requirement equally applied to the Government’s burden of proof on the “honest services” charges.[16]

While Skilling did not involve allegations of bribery or kickbacks, Scrushy and Siegelman were both charged and convicted of mail fraud “honest services” violations that incorporated bribery allegations. Under Skilling, those charges may still be within the scope of the statute. Yet, the other “honest services” charges against Siegelman that the Eleventh Circuit reversed rested on allegations of conspiracy in a broader scheme to enable Scrushy’s self-dealing, which Skilling appears to place beyond the scope of § 1346.[17] The remand provides an opportunity to test the substantive standards of a bribery-related “honest services” offense, and may indicate that the Court is interested in ensuring that the quid pro quo element obtain further definition in the context of an “honest services” charge. Scrushy and Siegelman argued in their petitions for certiorari that the Government was required to prove an “express” quid pro quo in order to convict under the bribery, conspiracy and “honest services” charges.[18] But the Government argued in its opposition to the petition that no court had yet interpreted whether McCormick applied to the “honest services” statute, that at least one circuit held it not to apply to state bribery statutes, and that the issue presented a threshold question that the court of appeals had not adequately addressed.[19]

As framed by the parties, one of the issues that may be resolved on remand is whether a campaign contribution can serve as a “quid” or an official’s “quo” sufficient to sustain a bribery-related honest services charge. If it is not, the government argues that public officials would be given “complete immunity under § 1346 for selling their offices for campaign donations.”[20] Were the government to prevail on this issue, it may claw back some terrain arguably lost by pulling more conduct into the “category” of bribery-related honest services charges.[21]

Relatedly, there is a dispute about whether the public official is required to have been enriched by the contribution. As directed by Skilling, the parties have delved back into pre-McNally case law in order to give content to statute’s coverage. If it is reaches the merits of the statutory interpretation issues, the Eleventh Circuit’s decision in this high profile case could provide a standard for post-Skilling analysis both in form and substance.


B. Weyhrauch and Harris: State Law Limiting Principle.

1. Weyhrauch

In Weyhrauch, the Supreme Court may have had the opportunity to address whether breach of a state law duty is required to obtain a conviction under the “honest services” statute an issue on which the circuits are divided.[22] That case involved an attorney and member of the Alaska legislature, Bruce Weyhrauch, who, the indictment alleged, solicited a series of contracts with representatives of VECO Corp (“VECO”), an oil field services company, in exchange for taking action favorable to VECO with regard to pending legislation of an oil tax.[23] The indictment alleged that Weyhrauch committed an “honest services” offense when he “deprive[d] the State of Alaska of its intangible right to [his] “honest services” . . . performed free from deceit, self-dealing, bias, and concealment’ and attempted to execute the scheme by mailing his resume to VECO.”[24] Importantly, the government did not “allege that Weyhrauch received any compensation or benefits from VECO or its executives,” but alleges facts suggesting that Weyhrauch took the actions favorable to VECO on the understanding that VECO would hire him in the future to provide legal services to the company.[25]

At the district court level, Weyhrauch sought to exclude several pieces of evidence proposed by the government’s motion in limine in connection with the “honest services” charge.[26] The government argued that the challenged evidence should be admitted because proof that a legislator knowingly concealed a conflict of interest could be used to support an “honest services” conviction even if state law did not require such disclosure.[27] The district court concluded that the challenged evidence related only to a state law duty to disclose a conflict of interest and that the relevant state law did not require disclosure.[28] Recognizing a lack of Ninth Circuit authority on the issue, and a split among other circuits, the district court followed the “state law limiting principle” adopted by the Third and Fifth Circuits,[29] and excluded the government’s evidence on the grounds that Weyhrauch could not commit an “honest services” offense without breaching a duty imposed by state law.[30] The government filed an interlocutory appeal.[31]

The Ninth Circuit, in a case of first impression, reversed.[32] Foreshadowing to some degree the analysis of the Supreme Court in Skilling, the Ninth Circuit acknowledged that “as one moves beyond the core misconduct covered by the statute,” such as bribes, the statute was unclear and it was necessary to return to pre-McNally case law.[33] The Ninth Circuit acknowledged that the “state law limiting principle” avoids the application of a uniform federal rule, and therefore has the favorable effect of limiting federal prosecutors’ “unwarranted influence” over state and local public ethics standards.[34] Additionally, under the state law limiting principle, state law limits the reach of the federal “honest services” statute “by tying liability to violations of specific state statutes.”[35] Nonetheless, the Ninth Circuit followed the majority of other circuits that have—if not uniformly—found that an “honest services” charge can be governed by federal standard.[36] The Ninth Circuit found that its own pre-McNally precedents suggested a uniform federal standard and did not require that “federal fraud statutes derive their content solely from state law.”[37] The court also found that nothing in the legislative history reflected Congress’s intent to limit the reach of the statute to state law, and doing so was likely to cause a situation where identical conduct in two states might violate the statute in one, but not in the other.[38] In short, because pre-McNally cases did not require state law to create the duty that “public officials owe the public and the plain language of the statute does not refer to state law,” the Ninth Circuit held that it would not “infer that Congress intended to import any state law limitation into § 1346.”[39]

The Ninth Circuit then determined that its pre-McNally (and post-McNally) cases identified “two core categories of conduct by public officials” that generally supported an “honest services” conviction: “(1) taking a bribe or otherwise being paid for a decision while purporting to be exercising independent discretion; and (2) nondisclosure of material information.”[40] The Ninth Circuit observed that the allegations that Weyhrauch “voted and took other official actions on legislation at the direction of VECO while engaged in undisclosed negotiations for future legal work from VECO,” fell “comfortably” within the two categories of pre-McNally cases.[41] Accordingly, the government could “proceed on its theory that Weyhrauch committed “honest services” fraud by failing to disclose a conflict of interest or by taking official actions with the expectation that he would receive future legal work for doing so.”[42] Thus, the Ninth Circuit ruled that § 1346 “establishes a uniform standard for ‘honest services’ that governs every public official and that the government does not need to prove an independent violation of state law to sustain an “honest services” fraud conviction.”[43]

The Supreme Court simply vacated the Ninth Circuit’s judgment and remanded in light of Skilling, without providing any detail about the issues to be considered.[44] Whatever the Court’s intent, the Ninth Circuit dealt with Weyhrauch swiftly on remand, affirming the district court’s denial of the government’s motion in limine in a three paragraph decision.[45] Though the Ninth Circuit’s holding indeed affirmed exclusion of the government’s “honest services” offense evidence, it did so not based on the state law limiting principle, but on the basis that, after Skilling, nondisclosure of a conflict of interest could no longer provide the basis for an “honest services” offense. Notably, the Ninth Circuit implicitly interpreted the Skilling holding—that § 1346 does not render private non-disclosures a criminal offense—to apply equally to non-disclosures of a public official. The remand decision left untouched the issue of whether the non-disclosure obligation underpinning a “honest services” violation must be specified by state law.


2. Harris

The Harris decision provided the Court with a second opportunity to address the validity of the state law limiting principle.[46] Harris involved allegations of a public contracting corruption scheme wherein the defendants, Paula Harris and Paul Richards, argued that the state law limiting principle of § 1346 meant that the district court erred when it denied their motion to strike references to “unnecessary and exorbitant” contracts in the indictment, which were not related to any state law requirement.[47] Observing that the references “alleged conduct on par with nondisclosure of material information, which constitutes a violation of § 1346, even if it was not also a violation of state law,” and relying on relying on Weyhrauch, the Ninth Circuit found no abuse of discretion by denying the motion to strike.[48]

Following the Supreme Court’s GVR, the Ninth Circuit remanded Harris to the district court for further consideration in light of Skilling.[49] Upon remand, the defendants promptly filed motions to vacate the judgments based on Skilling, arguing that numerous counts are based on conflicts of interest and non-disclosure of material information that are no longer actionable after Skilling, and that other counts (such as money laundering) need to be reconsidered because they were tainted by the “honest services” counts.[50] The court did, indeed, vacate those judgments, leaving the question of the state law limiting principle’s validity unanswered.[51]

Thus, neither Weyhrauch nor Harris seized the opportunity to shed light on the issue or at least provide some arguments worthy of Supreme Court review. If these cases are indicative of future trends, it appears likely that courts will impute Skilling’s exclusion of private nondisclosures of conflicts of interest from “honest services” offenses to similar nondisclosures of public officials. In doing so, final determination of the state law limiting principle will likely remain unsettled until the issue arises in a bribery or kickback case.


C. Black: Scope of Private Duties.

The Black case dealt with the unsettled issue of whether, to constitute an “honest service” offense, a defendant must have obtained some form of “private gain.” In Black, the defendant, Conrad Black, was the chief executive of Hollinger International (“Hollinger”), which own newspapers through its subsidiary companies.[52] One of Hollinger’s subsidiaries, APC, was in the process of divesting several newspapers that it owned.[53] Near the end of this process, Hollinger’s general counsel prepared and executed an agreement between APC, and Hollinger’s senior executives under which the executives would receive “$5.5 million in exchange for their promising not to compete with APC for three years after” their employment with Hollinger terminated.[54] The defendants maintained at trial that the payment constituted “management fees” and that it was characterized as such for Canadian tax purposes; the Government alleged that the transaction was fraudulent.[55] Although the jury was instructed on money-or-property fraud, it was also instructed, over the defendants’ objections, that it could convict “upon proof that [the defendants] had schemed to deprive Hollinger and its shareholders ‘of their intangible right to the “honest services” of the corporate officers, directors or controlling shareholders of Hollinger,’ provided the objective of the scheme was ‘private gain.’”[56] After a four-month trial, the jury convicted all of the defendants of mail and wire fraud.[57]

The Seventh Circuit affirmed, holding that the defendants owed a fiduciary duty of loyalty and candor to Hollinger and misused their positions for personal gain in appropriating the $5.5 million without authorization.[58] The court of appeals held, “if the defendants in this case deprived their employer, Hollinger, of the “honest services” they owed it, the fact that the inducement was the anticipation of money from a third party (the anticipated then tax benefit) is no defense.”[59]

In their appeal to the Supreme Court, petitioners argued that the statute was unconstitutionally overbroad, and regardless of the scope of § 1346, their convictions had to be reversed because a conviction for “honest services” fraud could not be sustained without a jury finding that the defendant contemplated some identifiable economic harm to the victim.[60]Applying Skilling, the Supreme Court held that the “honest services” jury instructions given by the district court in Black were incorrect because “[t]he scheme to defraud alleged . . . did not involve any bribes or kickbacks.”[61] But the jury was also instructed that it could convict the defendants upon proof that they had schemed to deprive Hollinger and its shareholders “of their intangible right to the “honest services” of the corporate officers, directors or controlling shareholders of Hollinger,” provided the objective of the scheme was, “private gain.”[62] There was no denial by the Black defendants “that Hollinger was entitled to their honest services” and that they were senior executives who owed the company certain fiduciary obligations, including implied duties of loyalty and candor.[63] Moreover, the Seventh Circuit found that the defendants’ unauthorized appropriation of $5.5 million belonging to a subsidiary of Hollinger was a misuse of their positions in Hollinger for private gain, agreeing with the Second Circuit.[64]

On remand, Black may have provided some guidance as to whether the “private gain” requirement will survive Skilling, which acknowledged a circuit split on whether private gain was required, but did not resolve the issue.[65] The Seventh Circuit noted that the trial court instruction that the Black defendants had failed to render honest services to Hollinger and had done so in an effort to obtain a private gain “was a good instruction before the Supreme Court ruled that honest-services fraud requires proof of a bribe or kickback, but no longer.”[66] There was evidence that defendants had a duty of candor to the board in the conflict-of-interest situation, in which they found themselves, and by violating that duty they caused Hollinger to make false filings with the SEC, and they did so for their private gain. “That was a solid honest-services case before the Supreme Court weighed in, but not a solid pecuniary-fraud case.”[67] While there was evidence to support pecuniary fraud, the jury might have convicted based on the honest services charge. Because the government’s honest services case, even if proven, was insufficient after Skilling the Seventh Circuit remanded for a new trial on fraud. If the Seventh Circuit’s analysis in Black proves to be the normal pattern, then the unsettled “private gain” requirement may be rendered moot, because even where private gain is undisputed, it cannot support a conviction where there is no evidence of bribery or kickbacks.



D. Hereimi: Mens Rea.

In United States v. Hereimi, the government’s “honest services” theory was that Imad Salid Hereimi aided and abetted a state employee, Nezar Khaled Maad, “by setting up a ‘print brokerage’ called Horizon Graphics and directing state print jobs to that company.”[68] As part of his employment with Alaska, Maad had responsibility for preparing print jobs and locating vendors for those jobs.[69] The fraud was alleged to be based upon Maad’s concealment of his relationship to Horizon Graphics.[70] Though Hereimi claimed at trial he had no knowledge of printing, evidence presented showed that he was the owner of Horizon Graphics and took actions consistent with that ownership, such as obtaining a bank account and setting up the post office box to which the state sent payment for Horizon’s work.[71] While finding that “[t]here really was no basis for a doubt that Hereimi was necessary to the plot’s success,” the district court concluded that “[t]he case turned on Hereimi’s knowledge.”[72] It was apparently undisputed that Hereimi knew that Maad was a state employee with responsibility for print jobs, and that Horizon Graphics did most of its business with the state.[73] Instead, the dispute centered on whether “Hereimi knew that Maad’s actions invzolved a conflict of interest.”134 While Hereimi denied such knowledge, the district court held that a jury could have rejected his denial in light of information known to Hereimi.[74]

Based on its conclusion that the jury could infer such knowledge from the elaborate efforts Hereimi and Maad made to conceal Maad’s relationship with Horizon Graphics from the state, the district court denied Hereimi’s motion for acquittal and he was convicted of 20 counts of “honest services” mail fraud.[75] In charging the jury, however, the district court instructed that, in order to convict petitioner of honest-services fraud, the jury must find “beyond a reasonable doubt that [petitioner] acted with the knowledge that “honest services” fraud was being committed by Maad.”[76] Additionally, the jury submission included a deliberate indifference instruction that Hereimi challenged on appeal to the Ninth Circuit, which affirmed in a brief memorandum opinion that did not even discuss the “honest services” statute.[77] At the government’s urging, the Court held the petition, but vacated and remanded to the Ninth Circuit.[78]

In an unpublished memorandum decision, the Ninth Circuit found that the case was tried and argued to the jury based solely on the theory of honest services fraud that was rejected in Skilling.[79] Thus, it would appear that a theory based strictly on a defendant’s knowing concealment of a relationship—without any actual deprivation of property—is outside the scope of the statute based on Skilling. The court of appeals reversed the conviction and remanded for further proceedings, and the government gave notice that it would not pursue further proceedings against Hereimi.


E. Redzic: Precision in the Indictment and Bribery Standards.

Mustafa Redzic was the owner of a truck driving school that trained students to operate commercial vehicles.[80] His students were required to be tested by a state run facility or a private facility that was licensed by the state of Missouri.[81] Redzic was alleged to have participated in a scheme with his co-defendant, Troy Parr, a licensed third-party tester who was employed by the state, whereby students were “short tested,” skipping some or all of the requirements for a commercial driver license.[82] Redzic was charged with and convicted of a number of offenses, including mail fraud in violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, and bribery in violation of 18 U.S.C. § 666(a)(2).[83]

On appeal, Redzic argued that “the indictment was insufficient to charge him with depriving the state of Parr’s honest services.”[84] The Eighth Circuit dismissed that argument, finding that even though the indictment did not use the term “honest services,” there was no invitation for the grand jury to “wander beyond the allegations contained in the indictment.”[85] Instead, the Eighth Circuit found that grand jury would have considered the short-testing and submission of false paperwork course of conduct in returning the indictment, which therefore rendered the indictment sufficient.[86] The Supreme Court vacated the decision and remanded.

Redzic raises one of the issues at the heart of the concerns expressed in the Skilling concurrence, namely that “a statute that is unconstitutionally vague cannot be saved by a more precise indictment.”[87] Even though the Redzic indictment did not use the term “honest services” the Eighth Circuit was willing to surmise what the grand jury considered in delivering the indictment, and was willing to find that “honest services” was properly charged based on particular facts that the court believed was evidence of a course of conduct adequate to plead an “honest services” violation.[88]

On remand, the court of appeals again addressed the issue of the sufficiency of the indictment, and stuck to its guns, finding that the allegations “were more than sufficient to make out a case that Redzic and Parr intentionally devised a fraudulent scheme whereby the State of Missouri was deprived of its right to Parr’s honest services in a manner involving precisely the offense preserved in Skilling.”[89] The Eighth Circuit also held that even though the indictment cited §§ 1341 and 1343, and did not cite § 1346, the indictment was sufficient because “that section does not create a separate substantive offense; it merely defines a term contained in §§ 1341 and 1343.”[90] According to the court, it was enough that the indictment “cited to the appropriate substantive statutes which incorporate the fraudulent deprivation of honest services.”[91]

The general applicability of the Eighth Circuit’s holding on remand may technically be limited by the narrow standard of review due to the fact that jeopardy had already attached, which required that an indictment be upheld “unless it is so defective that by no reasonable construction can it be said to charge the offense for which the defendants were convicted.”[92] Nonetheless, the Eighth Circuit’s holding would appear to countenance continued flexibility in charging honest services fraud, including the fact that a reference to § 1346 or “honest services” is unnecessary. And, the Eighth Circuit affirmed that a scheme such as Redzic’s survives Skilling.



F. Hargrove: Vagueness.

Jack Hargrove and Laurence Capriotti co-owned Intercounty Title Company of Illinois (“Intercounty”), a title insurance and escrow agency based in Chicago.[93] Due to a price war among title insurers, Intercounty was losing millions of dollars each year.[94] Intercounty attempted it cover its losses by investing in junk bonds, but was unsuccessful.[95] The government’s case against Hargrove and Capriotti was based on allegations that they and other Intercounty executives “engineered numerous fraudulent schemes under which the title company’s deficits were covered by thefts from its escrow account,” which “robbed Intercounty of more than $60 million.”[96]

Before trial, Hargrove moved to dismiss the “honest services” charge on the ground that the statute was unconstitutionally vague.[97] The district court denied the motion and the Seventh Circuit summarily affirmed, finding that its precedent firmly held that the statute was not void for vagueness.[98] Of the cases GVRed, Hargrove’s petition to the Supreme Court made the broadest constitutional attack on the statute. In his petition, Hargrove recounted the divergent opinions of the various courts of appeals regarding the requisite elements and reach of a “honest services” violation, both pre- and post-McNally.[99]

Hargrove’s “honest services” conviction would appear to be a fairly strong candidate for reversal based on Skilling, because the allegations arise from theft from a corporate escrow account, not bribery or kickbacks.[100] That charge, at least, appears to be untenable after Skilling. Additionally, Hargrove’s contentions at trial included the argument that because the alleged conduct involved only private business activities; it did not fall within the statute’s reach. The trial court summarily found that Hargrove’s conduct alleged “fits very comfortably within the judicial gloss of what are not ‘honest services’” and that “victims of the nature alleged here are within the rational definition of ‘another.’”[101] In his subsequently filed statement of issues, Hargrove contended his trial had been contaminated by the honest services charge, but there has not yet been any resolution of the issue.




Notes et références

  1. Id. at 2935-40
  2. Id. at 2930-34
  3. See generally Sorich v. United States, 523 F.3d 702 (7th Cir. 2008).
  4. See Sorich v. United States, 130 S. Ct. 1308, 1310−11 (2009). The jury was instructed that defendants, who were employees of the City of Chicago, were obliged “[a]s part of the “honest services” they owed the City and the people of the City of Chicago to abide by a list of laws, decrees, and policies, including a 1983 civil servant consent decree entered into by the City which barred patronage hiring for some jobs.” Id.
  5. See Scrushy v. United States, 130 S Ct. 3541 (June 29, 2010), remanding United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) (affirming conviction of co-defendant Richard Scrushy, founder and former chief executive officer of HealthSouth Corporation); Siegelman v. United States, 130 S. Ct. 3542 (June 29, 2010), remanding United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) (affirming conviction of Don Siegelman, former Governor of Alabama); Hargrove v. United States, 130 S. Ct. 3543 (June 29, 2010), remanding United States v. Hargrove, 579 F.3d 752 (7th Cir. 2009) (affirming conviction of co-owner of title insurance and escrow company); Hereimi v. United States, 130 S. Ct. 3543 (June 29, 2010), remanding United States v. Hereimi, 357 Fed. Appx. 82 (9th Cir. 2009) (affirming conviction for aiding and abetting honest-services fraud); Richards v. United States, 130 S. Ct. 3542 (June 29, 2010), remanding United States v. Harris, 313 Fed. Appx. 969 (9th Cir. 2009) (affirming co-defendant’s conviction for involvement in a public corruption scheme); Harris v. United States, 130 S. Ct.3542 (June 29, 2010), remanding United States v. Harris, 313 Fed. Appx. 969 (9th Cir. 2009) (affirming conviction for involvement in a public corruption scheme); Redzic v. United States, 130 S. Ct. 3543 (June 29, 2010), remanding United States v. Redzic, 569 F.3d 841 (8th Cir. 2009) (affirming conviction in connection with alleged scheme by owner of commercial driving school to obtain state licenses for students).
  6. Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964).
  7. Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001); Lawrence v. Chater, 516 U.S. 163, 167 (1996).
  8. See Siegelman, 561 F.3d at 1215.
  9. Petition for Writ of Certiorari at 7, Siegelman v. United States, No. 09–182 (Aug. 10, 2009).
  10. See Siegelman, 561 F. 3d at 1229.
  11. Id. at 1223
  12. Id. at 1245
  13. Id. at 1229.
  14. Id.
  15. Id. at 1232
  16. See Petition for Writ of Certiorari at 7, Siegelman v. United States (No. 09–182) (Aug. 10, 2009); Petition for Writ of Certiorari at 10–17, Scrushy v. United States, 130 S. Ct. 3541 (2010) (No. 09–167) . But the Government argued in its opposition to the petition that no court had yet interpreted whether McCormick applied to the “honest services” statute, that at least one circuit held it not to apply to
  17. See Skilling, 130 S. Ct. at 2928.
  18. See Petition for Writ of Certiorari at 7, Siegelman v. United States, No. 09–182 (Aug. 10, 2009); Petition, Scrushy v. United States at 10–17, 130 S. Ct. 3541 (2010) (No. 09–167).
  19. Brief in Opposition at 14, Siegelman v. United States, No. 09–182, 2009 WL 2481338 (Nov. 13, 2009).
  20. Supplemental Reply Brief at 4, 21, United States v. Siegelman, No. 07-13163-B (11th Cir. May 2008) (U.S. Supp. Reply Br., filed Sept. 21, 2010).
  21. Id. at 6.
  22. The Court granted certiorari limited to the question “whether, to convict a state official for depriving the public of its right to the defendant’s ‘honest services’ through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. §§ 1341 & 1346), the Government must prove that the defendant violated a disclosure duty imposed by state law.” Weyhrauch v. United States, 129 S. Ct. 2863 (U.S. 2009), cert. granted, 129 S. Ct. 2863 (2009).
  23. Weyhrauch v. United States, 548 F.3d 1237, 1239 (9th Cir. 2008).
  24. Id. at 1239.
  25. Id. 1239−40.
  26. Id.
  27. Id
  28. Id. at 1240.
  29. See United States v. Murphy, 323 F.3d 102, 116–17 (3d Cir. 2003); Brumley, 116 F.3d 728.
  30. Weyhrauch v. United States, 548 F.3d 1237, 1240 (9th Cir. 2008).
  31. Id.
  32. Id. at 1239
  33. Id. at 1243
  34. Id. at 1244-45
  35. Id. at 1245
  36. Id.
  37. Id.
  38. Id. at 1245-46
  39. Id. at 1246
  40. Id.
  41. Id.
  42. Id.
  43. Id. at 1248
  44. Weyhrauch v. United States, 130 S. Ct. 2971 (2010).
  45. United States v. Weyhrauch, 633 F.3d 707 (9th Cir. 2010).
  46. Harris v. United States, 130 S. Ct. 3542 (2010).
  47. United States v. Harris, 313 Fed. Appx. 969, 2009 WL 4977272, at *1 (9th Cir. 2009).
  48. Id.
  49. United States v. Harris, 388 Fed. Appx. 608, 2010 WL 2812907 (9th Cir. 2010).
  50. United States v. Harris, 388 Fed. Appx. 608, 2010 WL 2812907 (9th Cir. 2010).
  51. See Minutes of Defendants’ Motion to Vacate Judgment, United States v. Harris, No. 2:04-cr-01416-RGK (Sept. 28, 2010).
  52. United States v. Black, 530 F.3d 596, 599 (7th Cir. 2008).
  53. Id.
  54. Id.
  55. Id.
  56. Id. at 599-600
  57. Id. at 598.
  58. Id. at 600.
  59. Id. at 601
  60. Petition for Writ of Certiorari at 13–14, Black v. United States, 130 S. Ct. 2963 (2010) (No. 08–876).
  61. Black v. United States, 130 S. Ct. 2963, 2968 n.7 (2010).
  62. United States v. Black, 530 F.3d 596, 600 (7th Cir. 2008).
  63. Id.
  64. See United States v. Rybicki, 354 F.3d 124, 141–43 (2d Cir. 2003) (deprivation of “honest services” where personal injury lawyers made payments to insurance adjusters, who failed to report payments to employer, in violation of company policy).
  65. Compare United States v. Bloom, 149 F.3d 649, 655 (7th Cir. 1998), with United States v. Panarella, 277 F.3d 678, 692 (3d Cir. 2002).
  66. United States v. Black, 625 F.3d 386, 391−92 (7th Cir. 2010).
  67. Id. at 392.
  68. See Order, United States v. Hereimi, No. 3:08-cr-00007 JKS at 1 (D. Alaska, Sept. 10, 2008) (denying motion for acquittal).
  69. Id.
  70. Id.
  71. Id.
  72. Id. at 2
  73. Id.
  74. Id.
  75. Id.
  76. See Petition for Writ of Certiorari at 52, Hereimi v. United States, 130 S. Ct. 3543 (2010) (No. 09–1035).
  77. See Hereimi v. United States, 357 Fed. Appx. 82 (9th Cir. 2009).
  78. See Hereimi v. United States, 130 S. Ct. 3543 (2010).
  79. See United States v. Hereimi, 357 Fed. Appx. 82 (9th Cir. 2010) (citing Skilling and McNally for the proposition that conviction reversed where “there was no charge and the jury was not required to find that the [State] itself was defrauded of any money or property.”).
  80. See United States v. Redzic, 569 F.3d 841, 843 (8th Cir. 2009).
  81. Id.
  82. Id. at 843−44.
  83. Id. at 843.
  84. Id. at 847.
  85. Id. at 848.
  86. Id.
  87. Skilling v. United States, 130 S. Ct. 2896, 2935 (Scalia, J., concurring).
  88. See Redzic, 569 F.3d at 848 (“[T]he course of conduct charged in the indictment corresponded with the government’s proof at trial and the jury instructions. There was no danger that the jury might consider other, uncharged incidents in convicting him.”).
  89. United States v. Redzic, 627 F.3d 683, 688 (8th Cir. 2010)
  90. Id.
  91. Id. at 689.
  92. United States v. Pennington, 168 F.3d 1060, 1064-65 (8th Cir. 1999).
  93. See United States v. Hargrove, 579 F.3d 752, 753 (7th Cir. 2009).
  94. Id.
  95. Id.
  96. Id.
  97. Id.
  98. Id. at 754 (“At oral argument, Hargrove informed this Court that he has raised the claim solely for the purposes of preserving the issue in the event that the Supreme Court chooses to consider it at some future date. Fair enough.”).
  99. Petition for Writ of Certiorari, Hargrove v. United States, No. 09–929, 2010 WL 1436447 (Feb. 1, 2010).
  100. Id. at 753
  101. See United States v. Capriotti, No. 03 CR 779, 2003 WL 23213568, at *4 (N.D. Ill. 2003) (citing Brumley, 116 F.3d at 740–41).


Voir aussi

« <strong class="error">Erreur d’expression : opérateur / inattendu.</strong> » n’est pas un nombre.
- Skilling v. U.S.