An era of potentially unlimited honest services fraud has drawn to a close. On June 24, 2010, in three related opinions, the Supreme Court severely circumscribed the scope of the federal honest services fraud statute. Skilling v. United States, 561 U.S.— (2010); Black v. United States, 561 U.S.— (2010); Weyhrauch v. United States, 561 U.S.— (2010). Some were of the view that federal prosecutors had used the statute to “target anything that offend[ed] their ethical sensibilities.” Brief for the Petitioners at 17, Black v. United States, 561 U.S.— (2010) (No. 08-876). Most were frustrated by the lack of clarity in honest services jurisprudence. Following the Supreme Court’s decisions, federal prosecutors now must limit honest services prosecutions to cases involving bribes and kickbacks. However, many questions remain about honest services fraud, even as curtailed.
Codified at 18 USC §1346, theft of honest services supplements traditional mail and wire fraud prosecution theories. Section 1346 provides simply that a scheme or artifice to defraud “includes a scheme or artifice to deprive another of the intangible right of honest services.”
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