Honest Service Fraud: The Staggeringly Broad Swath of Behavior it Covers

The Supreme Court denied cert in Sorich et al. v. U.S., what could have been an opportunity for the Court to narrow the scope of what behavior may be deemed honest services fraud.  Justice Scalia offered a dissent from the denial of cert which is available here.  In the dissent, he notes disapporvingly the “staggeringly broad swath of behavior” courts have held that honest services, 18 U.S.C. 1346, covers.  

Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.

Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.

In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346.  Indeed, it seems to me quite irresponsible to let the current chaos prevail.

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