Deprivation of Honest Services as a Basis for Federal Mail and Wire Fraud Convictions [September 16, 2011] [open pdf - 312KB]
"The United States Supreme Court in 'Skilling v. United States' construed the honest services branch of the federal mail and wire fraud statutes to reach no more than cases involving bribery or kickbacks. The mail and wire fraud statutes, 18 U.S.C. Sections 1341 and 1343, impose criminal penalties for the use of mail or interstate wire communications to deprive another of money or property through a 'scheme or artifice to defraud.' In its 1987 'McNally' decision, the Court had held that while the fraud statutes reached schemes to deprive another of property rights, they did not cover 'the intangible right of the citizenry to good government.' Congress responded almost immediately by enacting the 'honest services' statute, 18 U.S.C. Section 1346, which declares that the phrase 'scheme or artifice to defraud' in the mail and wire statutes also encompasses depriving 'another of the intangible right of honest services.' In its 2009 term, the Court was presented with three honest services cases--'Skilling', 'Black', and 'Weyhrauch'. Each offered the Court a slightly different prerequisite for an honest services conviction--for 'Weyhrauch', a public official, it was an underlying state law violation; for Black, in the private sector, it was foreseeable harm; for 'Skilling', an Enron executive, it was private gain. […] The Court sent each of the three cases back to the lower courts--'Black' and 'Skilling', for a determination of whether erroneous jury instructions on honest services fraud had so tainted their convictions as to require a new trial or whether the instructions simply constituted harmless error; 'Weyhrauch', for the reconsideration in light of the Court's 'Skilling' decision."
CRS Report for Congress, R40852