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Elkan Abramowitz and Jonathan Sack

Mail and wire fraud based on the deprivation of honest services is one of the most thorny concepts in white-collar criminal law. Since prosecutors advanced and federal courts accepted this theory of liability beginning in roughly the early 1970s, defense counsel and some commentators and courts have raised concerns about the vagueness and unclear boundaries of criminal responsibility. These concerns have related chiefly to, first, uncertainty as to when disloyalty to an organization or the public as a whole turns from civil breaches of fiduciary (or similar) duties into criminal behavior, and, second, the danger that a highly expansive theory of criminal liability could be misused to target individuals in a capricious or otherwise unfair manner.

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