To my loyal readers. I have been on leave from letterofapology.com for the past few weeks while guest blogging on Professor Podgor’s White Collar Crime Prof Blog. See my posts there today on the Supreme Court’s honest services fraud trilogy.
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Vanderbilt Law Review hosts an excellent En Banc Roundtable here on the Enron-related case of Skilling v. United States, currently before the Supreme Court. Articles on the historical evolution of honest services fraud by Ellen Podgor and the unconstitutional vagueness of the honest services statute by Julie O’Sullivan are particularly outstanding.
Today’s Washington Post has a good story here by Robert Barnes on Monday’s argument in U.S. v. Skilling, the last of three honest services fraud cases heard at the Supreme Court this term. Skilling involves former Enron CEO Jeffrey Skilling’s appeal of his conviction in the main Enron trial. Other issues in the appeal include the trial court’s refusal to change the venue as well as its rapid selection of a jury. The Court apparently continues to be skeptical of the constitutionality of the honest services fraud statute. Professor Ellen Podgor has an excellent commentary on the Skilling arguments, here, over at the White Collar Crime Prof Blog.
Adam Liptak has a decent piece here in today’s NYTimes about the alliance between certain conservative and liberal intellectuals against the overcriminalization of our society, primarily at the federal level. The article makes it appear that this particular left-right alignment is brand new, which is inaccurate. For example, Ed Meese, who is featured in the article, has long been in the forefront of the fight against overcriminalization at the federal level. Nor does the alignment cover the entire intellectual-political spectrum. If it did, Congress would presumably stop passing vague and overbroad criminal laws every time some scandal emerges.
In truth, this is an alliance between the criminal defense bar, civil libertarians with criminal defense bar ties, economic libertarians, the Chamber of Commerce, some traditional conservatives, certain segments of the Federalist Society, and former prosecutors who now represent white collar defendants. This doesn’t mean that the alliance is bad, or that its arguments are faulty. Far from it. In fact, the entire federal criminal justice system is heavily rigged, substantively and procedurally, in favor of the prosecution. Don’t expect this to change anytime soon. There is no constituency for being soft on white-collar crime.
The article mentions in passing the three honest services fraud cases that are currently before the U.S. Supreme Court. Justice Sotomayor, who is not mentioned in the article, is on the wrong side of the honest services issue if her Second Circuit jurisprudence is any indication. She appears to be part of the New Deal school of Supreme Court jurisprudence–generally strong on civil liberties, but weak on limiting the reach of draconian federal white collar criminal statutes. I don’t expect her to be receptive to most of the arguments against overcriminalization. Her writings and/or votes on the honest services cases will tell us a lot on this point.
The Supreme Court has accepted certiorari in U.S. v. Conrad Black, on the question of whether honest services fraud reaches the private conduct of a defendant who did not contemplate identifiable economic harm. This has the potential to be a watershed decision that reins in the current indiscriminate use of honest services fraud as a prosecutorial tool by the federal government. Here is Miguel Estrada’s Petition For A Writ Of Certiorari, care of scotusblog.
Yesterday Justice Scalia dissented from the denial of certiorari in Sorich v. United States, a Seventh Circuit honest services fraud case. Scalia’s dissent is a cogent due process and federalism based attack on the unfairness, inconsistency, and appalling lack of clarity governing the case law on honest services mail and wire fraud. With the death of the Holder Memorandum, DOJ’s use and misuse of the honest services fraud statute as a prosecutorial tool is emerging as the the number one issue in federal criminal practice today. Justice Scalia is often a few years ahead of the country on issues related to substantive federal criminal law and sentencing. Let’s hope his dissent catches the attention of some adults at DOJ. Somebody should call Arlen Specter. Here is Justice Scalia’s opinion. Thanks and a hat tip to Tiffany Joslyn of NACDL for bringing this to the attention of the NACDL listserve.