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The Supreme Court has granted certiorari in, and will soon resolve, three related cases, all involving the scope of “honest services” fraud under 18 U.S.C. §1346.1 By itself, this is unusual, because the Court usually takes only a single case and remands related cases for reconsideration in light of its decision. Also unusual is the fact that the Court is reconsidering the scope of mail and wire fraud, as §1346 was passed by Congress as a direct rebuff to the Supreme Court following the Court’s last attempt (two decades ago) to trim the ineffably broad scope of the mail and wire fraud statutes. Reversing the narrow reading that the Court had given those statutes in McNally v. United States2 so that they applied only to schemes seeking money or property (and not to deprivation of intangible rights), §1346 broadly criminalized any “scheme to deprive another of the intangible right of honest services,” at least if the mails or interstate wires were used. Not surprisingly, the circuits have split over when this intangible right arises and what it must be based upon.

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