1988 Federal -Honest Services- law (in Wire & Mail Fraud Act) so broad and vague no one knows what it means.
After the U.S. Supreme Court said the mail fraud statute couldn’t be construed to include honest services, Congress, in l988, passed an amendment to the Federal Mail and Wire Fraud Statute to made the deprivation of honest services a crime. The problem is that different courts have different definitions of what honest services means. See statute at end of this article.
-Honest- statute prompts bar fight
Palm Beach Post Staff WriterMonday, November 27, 2006
When former Palm Beach County Commissioner Tony Masilotti goes to court this week to face allegations of government corruption, he joins a long and seemingly ever-growing list of notables who have pleaded guilty to a charge that some lawyers claim is blatantly unconstitutional.
Like lobbyist Jack Abramoff and U.S. Reps. Randy “Duke” Cunningham and Bob Ney, the once high-rolling commissioner is charged with honest services fraud.
“It’s a complete mess, and prosecutors love it,” said Albert Alschuler, a law professor at Northwestern University Law School. “They call it their Stradivarius, their Colt 45, their Cuisinart.”
The monikers are appropriate, he said, because the charge is almost impossible to beat.
A mere 28 words long, the statute has been giving courts and defense attorneys fits since it was enacted 18 years ago, said former federal prosecutor Richard Strassberg.
Steeped in the mom-and-apple-pie idea that people have “the intangible right of honest services,” it sounds good, said Strassberg, now in private practice in New York City. The problem is that no one knows what it means, he said.
“What, after all, is the ‘intangible right of honest services?’ ‘” he asked in a New York Law Journal article. “What ‘honest services’ are owed, and by whom? How are such ‘honest services’ breached?”
It was enacted in 1988, after the U.S. Supreme Court said the mail fraud statute couldn’t be construed to include honest services. In response, the U.S. Department of Justice asked Congress to amend the mail and wire fraud statute to make the deprivation of honest services a crime.
Since then, federal appeals courts have come close to striking it down as unconstitutionally vague.
The 2nd Circuit Court of Appeals in New York, for instance, wrote that “the plain meaning of ‘honest services’ … simply provides no clue to the public or the courts as to what conduct is prohibited under the statute.”
However, rather than throw it out, the 2nd Circuit and other federal courts have fashioned meanings that aren’t the same nationwide, Alschuler said.
The law is so broad, he said, that unfulfilled campaign pledges, such as President George H.W. Bush’s infamous “read my lips” promise, could be prosecuted as a crime.
Prosecutors say they are well aware of the complaints about the law that has been used to jail hundreds of public officials from police officers to purchasing agents to mayors to governors.
“Our view is that Congress has said that people have the right to honest services,” said Bryan Sierra, a spokesman for the U.S. Department of Justice. “Our argument is that the more laws that are out there covering this particular crime, the more tools we have to stop public corruption.”
Guy Lewis, a decade-long U.S. attorney for the Southern District of Florida who was tapped to oversee all U.S. attorneys in the nation, acknowledged that the honest services fraud statute gives prosecutors a powerful weapon.
“Is it a broad net to catch as many fish as possible? Yes,” said Lewis, who is in private practice in Miami. “But at the end of the day, they have to prove that a defendant knowingly and intentionally violated the law.”
Claims that campaign promises could be prosecuted make good theoretical arguments, he said.
“But when the rubber hits the road, prosecutors have to use it judiciously and wisely,” he said. “They have to be able to prove it beyond a reasonable doubt.”
Still, defense attorneys say, the law makes it too easy for prosecutors.
Ian Lanoff, a labor attorney in Washington, D.C., said he can understand prosecutors’ frustration. Bribery and extortion are often difficult to prove because there has to be a true cause and effect: a public official gets money and then votes on a measure to benefit his benefactor. Often, it’s not clear-cut.
“If it’s an easier path to conviction, as a lawyer I can’t applaud that,” he said.
The path is often further greased because the cases are high profile, Alschuler said.
“Typically, it comes before the courts as a newspaper case,” he said. “It’s a heater.”
Such was the case with Cunningham, Abramoff and Ney. Cunningham, of California, pleaded guilty to accepting $2.4 million in bribes from defense contractors for steering Pentagon contracts their way. Abramoff, one of the nation’s leading lobbyists, pleaded guilty to a wide-ranging influencing peddling scandal which ultimately snared Ney of Ohio.
The case against Masilotti, who is accused of using his position to craft a series of real estate deals that made millions for him and his family, has also been the subject of numerous newspaper articles and television news reports.
Alschuler speculated that one of the reasons appeals courts have been loath to invalidate the statute is that the cases, most notably the influence-peddling scandal that netted Abramoff, Ney and others, are front-page news.
Eventually, he predicted, the U.S. Supreme Court will have to step in.
“All of the federal courts are in conflict as to what it means,” he said. “The Supreme Court has been irresponsible in not sorting it out.”
Still, others said, the law passes constitutional muster.
Bruce Rogow, a constitutional lawyer and professor at Nova Southeastern University in Davie, said prosecutors still have to prove there was a scheme to defraud.
“All you’re doing is making honest services as important as stealing money or property,” he said. “I think there’s something to be said for demanding honest services.”
The U.S. Code Amendment states:
TITLE 18–CRIMES AND CRIMINAL PROCEDURE
CHAPTER 63–MAIL FRAUD
Sec. 1346. Definition of “scheme or artifice to defraud”
For the purposes of this chapter, the term “scheme or artifice to
defraud” includes a scheme or artifice to deprive another of the
intangible right of honest services.
(Added Pub. L. 100-690, title VII, Sec. 7603(a), Nov. 18, 1988, 102