"You might not have robbed a bank or stolen anything . . . but I can guarantee that you are 'guilty' of 'honest services fraud'" says William L. Anderson, Ph.D., a teacher at Frostburg State University in Maryland.
"Have you ever taken a longer lunch break than what you are supposed to do? Have you ever made a personal phone call at work or done personal business on your employer's computer? Have you ever had a contract dispute with an employer or a client? An enterprising federal prosecutor can criminalize all of those things.
If you're an attorney and signed forms even though you haven't read every word (for example, the standard closing documents for real estate), you've committed 'honest services fraud.'" 1
The honest-services fraud statute has been gaining attention. In its 2009-2010 term, the US Supreme Court will hear three cases challenging the constitutionality of the honest services fraud statute.
What Is Honest-Services Fraud?
The honest-services fraud law was passed in 1988 as part of the mail and wire fraud laws passed that year. The law makes it a crime for executives and government officials to deny the people they serve the "intangible right to honest services." This strangely worded phrase divides juries and has led to criticism for a string of baseless prosecutions.
There are two categories: public and private honest-services fraud. The public version includes elected or appointed public officials. The second version involves private citizens who fail to provide honest services to others. As a result, private honest-services fraud can be a universal crime that almost every person is guilty of.
Violating the honest-services fraud statute is a federal felony. It's punishable by five years in prison, a $250,000 fine, or both.
Many people are critical of the honest-services law and argue that it has two main flaws.
- It allows federal prosecutors too much discretion "to go after people they don't like or people they disagree with politically." 2
- Prosecutions of state officials under the federal law may violate principles of federalism because "It represents a federal judgment that you can't trust to the states." 3
Supreme Court Justice Scalia is critical of this law. According to Scalia, the courts haven't defined what separates "the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones." The honest services law "invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEO's who engage in any manner of unappealing or ethically questionable conduct."4
Recognizing the problem, Scalia promises that "it seems to me quite irresponsible to let the current chaos prevail."5 As a result, there will be more clarification on the honest-services law by the end of this Supreme Court term.
Most federal prosecutors support this law. Public officials have a duty to make decisions in the best interest of the people who elect them. When they make decisions based on personal interests, they're defrauding the public and need to be punished.
The Supreme Court Cases
Recognizing that the honest-services fraud statute can get out of hand, the US Supreme Court has agreed to hear three cases challenging that statute.
- United States v. Conrad Black - Black, a newspaper executive, was convicted of defrauding his media company, Hollinger International. It's a crime for officials of private companies to put their own interests ahead of those of their employers. The case asks if there must be proof the defendant knew his actions would cause economic harm to the company
- Weyhrauch v. United States - Can a public official be charged with honest services fraud when he didn't violate his duty under his state's law, but may have been involved in a conflict of interest. Weyhrauch, a former Alaska legislator failed to disclose to the legislature that he was soliciting work from a certain company. As in the Black case, his conduct may have been dishonest, but it didn't violate a state criminal law
- Skilling v. United States - Jeffrey Skilling, the former CEO of Enron was sentenced to 24 years in prison for depriving Enron of his honest services by conspiring to lie to investors about the company's financial health. Skilling challenged the statute, claiming it's vague and unfair and questions whether the honest services statute requires proof of personal gain
All three were convicted of honest services fraud in 2006 or 2007.
Notable Honest-Services Fraud Cases
Some of the most notable figures who have been charged with or convicted of honest services fraud are:
- Jack Abramoff, Washington, D.C. lobbyist sentenced in September to four years in prison for corrupting politicians with golf junkets, expensive meals, luxury seats at sporting events and other gifts
- Wayne R. Bryant, former Democratic New Jersey state senator, was convicted of multiple corruption charges, including honest services fraud, for using his power and influence to obtain a job at a state School of Osteopathic Medicine in exchange for bringing millions of dollars in extra funding to the school
- Randy "Duke'' Cunningham, former Republican US representative, was sentenced in 2006 to eight years in prison in corruption charges involving his acceptance of more than $2.4-million in homes, yachts, antiques, Persian rugs and other items from defense contractors
Clarification by the Supreme Court on honest-services fraud will impact existing and future cases. Hopefully, it will set limitations as to what can be prosecuted in this seemingly "catch-all" law.
1William L. Anderson, The Ultimate Prosecutorial Weapon: Honest Services Fraud, LewRockwell.com, August 12, 2009, http://www.lewrockwell.com/anderson/anderson262.html, accessed Nov. 11, 2009.
2 Adam Liptak, A Question of When Dishonesty Becomes Criminal, The New York Times, Oct. 12, 2009, http://www.nytimes.com/2009/10/13/us/13bar.html, accessed Nov. 11, 2009.
Questions for Your Attorney
- It seems that honest services fraud law could apply to even "minor" violations; what's the most insignificant instance that resulted in a prosecution?
- Do public officials have more reason to expect to be held accountable under the law than those in the private sector?
- If someone is prosecuted for private honest services fraud, could there be related civil lawsuits, say by the shareholders of a company, and would the outcome of a case under the honest services fraud law affect the civil lawsuit?