Under 18 U.S.C. § 1346, an official is guilty of honest-services fraud if he accepts something of value in exchange for an official act. 18 U.S.C. § 1346; Skilling v. United States, 561 U.S. 358, 412-13, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (noting that § 1346 "draws content ... from" 18 U.S.C. § 201(b), which prohibits corruptly accepting "anything of value"). The phrase "anything of value" has been interpreted broadly to carry out the congressional purpose of punishing the abuse of public office. United States v. Williams, 705 F.2d 603, 623 (2d Cir.1983). Thus, "thing of value" is defined broadly to include "the value which the defendant subjectively attaches to the items received." United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir.1986). US v. Renzi, 769 F. 3d 731 (9th Cir. 2014).
The wire fraud statute prohibits the use of wire communications to facilitate "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. § 1343. "[T]he term 'scheme or artifice to defraud'" in § 1343 "includes a scheme or artifice to deprive another of the intangible right of honest services." 18 U.S.C. § 1346. Section 1346 was enacted in response to the Supreme Court's decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which had held that 18 U.S.C. § 1341, the mail fraud statute paralleling § 1343, proscribed only schemes for the deprivation of tangible property rights, not of intangible rights to honest services. See Skilling, 130 S.Ct. at 2927-29. Although Congress enacted § 1346 to clarify that the prohibitions against wire fraud and mail fraud schemes encompass deprivations of honest services, the term "honest services" is not defined in the statute. US v. DeMizio, 741 F. 3d 373 (2nd Cir. 2014).
In Skilling, addressing a contention that § 1346 was void for vagueness, the Supreme Court concluded that the section is not unconstitutionally vague to the extent that it covers schemes involving bribery and kickbacks. The Court reasoned that fraudulent schemes involving bribery and kickbacks had long been held to be within the scope of §§ 1341 and 1343, and that in enacting § 1346 in the wake of McNally to proscribe fraudulent schemes for deprivation of the intangible right of honest services, Congress "no doubt ... intended § 1346 to reach at least" schemes to defraud involving "bribes and kickbacks." 130 S.Ct. at 2931 (emphasis in original). The Skilling Court concluded that § 1346 cannot be interpreted to reach an "amorphous category" such as "conflict-of-interest" cases, 130 S.Ct. at 2932, and that the section "criminalizes only the bribe-and-kickback core of the pre-McNally case law," id. at 2931 (emphasis in original). US v. DeMizio, ibid.
In order to convict for the federal crime of honest services fraud under § 1346, the government "'must prove that the conduct of a state official breached a duty respecting the provision of services owed to that official's employer under state law.'" (Citation omitted.) US v. Grace, (5th Cir. 2014).
Honest services fraud in the form of bribery requires proof of a quid pro quo and, therefore, the Government must prove "a specific intent to give or receive something of value in exchange for an official act." (Citation omitted.) US v. Grace, ibid.
THIS CASEBOOK contains a selection of 42 U. S. Court of Appeals decisions that analyze and discuss the federal crime of honest services fraud. The selection of decisions spans from January 2010 to the date of publication.