Supremes Review Anti Corruption Statute

With a ruling on the way any day now, the contours of federal white collar crime law may soon shift. At issue is a portion of 18 U.S.C. §1346, the 'honest-services fraud;' this particular section of the federal mail and wire fraud law broadly defines to what acts the law may be applied. Apparently, it is almost anything.

Currently, the legal definition of the phrase "scheme of  artifice to defraud" includes any act that "deprives another of the intangible right of honest services."  Dubious as it may sound, this language has become a tool for federal prosecutors in securing otherwise difficult convictions.

The statute has been met with heavy criticism and litigation due to its overly broad application. Most recently, the Supreme Court entertained oral arguments regarding the validity of the law with what seemed to be mostly sympathetic ears. Appellate counsel for the defense argued that §1346 was impossibly vague. The Suprem Court Justices' questioning and remarks during the hearing demonstrated their own skepticism over this statute's constitutionality.

From a layman's perspective this statute presents a number of problems. For instance, what does "deprivation of honest services" mean?  Does an unauthorized additional minute of break time for a government employee mean he or she has violated a federal criminal statute punishable by prison time? Does reading the sports pages at one's desk at work mean one should face indictment for a felony? What about logging onto Facebook or answering personal emails and text messages at work?  While all of these practices may be frowned upon by one's employer, should they be criminalized?

Of note, the Supreme Court previously struck down an earlier version of this very statute in the late 1980's because of its vagueness. Ultimately, the law and its use by prosecutor's violates a foundamental principle of fairness-as three of the justices proclaimed "the public must be able to understand what a criminal law means." The general public must have some basic understanding or meaningful notice that one's conduct violates a criminal statute.

Because of its overbreadth and vagueness, one hopes that this law will be invalidated.  While it is undoubtedly important and justified to regulate and police abuse of the public's trust, the Court's review of this matter will hopefully correct a law susceptible to abuse by overly zealous prosecutors. There are numerous statutes on the books already that can be used to confront official corruption.

Tylden Shaeffer is a San Antonio criminal defense attorney. For more information about Mr. Shaeffer's experience and services, please click here to contact his office today!