Honest services fraud, which is defined as a scheme or artifice to deprive another of the intangible right of “honest services,” is just one tool in the federal government’s extensive arsenal used to prosecute public corruption and private corporate fraud. The Supreme Court curtailed the expansion of this versatile theory twice in the past three decades, most recently in June 2010 in Skilling v. United States. In Skilling, the Court held, inter alia, that the federal honest services statute covers only bribery and kickback schemes and not undisclosed self-dealing. Months later, members of Congress proposed the Honest Services Restoration Act (HSRA) to undo some of the effects of the Skilling decision. This Note argues that in some instances the proposed HSRA criminalizes too narrow or too broad a range of conduct. To address concerns about overcriminalization of petty misconduct, abuse of prosecutorial discretion, and violation of federalism principles, any amendment to the honest services statute should draw upon past federal appellate court rationale and implement reasoned limiting principles to clearly define the scope of the statute. In particular, a reformulated honest services statute should specify 1) the source of the fiduciary duty, the breach of which constitutes fraud; 2) the specific intent to defraud as the mens rea of the crime; and 3) illegitimate gain to the accused or harm to the victim as alternative sufficient limiting principles to ensure that conduct rises to the level of criminal fraud.
Teresa M. Becvar,
When Does Sleaze Become A Crime? Redefining Honest Services Fraud after Skilling v. United States,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss2/16