The Intangible Right to Honest Services

This is the second in a series of posts in which I use the George Ryan trial to illustrate the unfairness of federal mail fraud and RICO prosecutions.

The Mail Fraud statute, enacted in 1872, forbids “devis[ing] any scheme or artifice to defraud” and then placing something in the mail for the purpose of executing this scheme. The 1872 statute incorporated the common law concept of fraud, which consists of depriving someone of property by lying.

Federal prosecutors in the 1970s sought to use the statute to convict people who had not deprived anyone of property. They persuaded lower federal courts to hold that the statute outlawed deprivations of “the intangible right to honest services.” One of the earliest cases was the prosecution of a former governor of Illinois, Otto Kerner, by a United States Attorney who became Illinois’ longest serving governor himself, James Thompson. The Supreme Court ultimately rejected the prosecutors’ gambit, concluding that the mail fraud statute did not outlaw deprivations of an ill-defined intangible right to honest services.

The Department of Justice then complained that the Court’s decision had deprived it of an important tool in its fight against government corruption. Although the Department could have asked Congress to enact a straightforward statute outlawing state and local bribery, it urged Congress to restore the prosecutors’ gimmick instead. Congress (which in the area of criminal justice nearly always lets the Department do its work for it) responded by adding a new section to the mail fraud statute declaring that a scheme or artifice to defraud includes a scheme “to deprive another of the intangible right to honest services.”

No one knows what this language means. A three-judge panel of the Second Circuit held it too vague to give fair notice to defendants, but the en banc Second Circuit set this ruling aside, offering its own unique definition of the term “honest services.” The Seventh Circuit similarly rejected a claim that the statutory language was unconstitutionally vague, and it provided a different, equally distinctive definition. In the Seventh Circuit (and nowhere else), the “intangible rights doctrine” encompasses every breach of a fiduciary duty for personal gain. Other circuits’ definitions also emphasize the breach of a fiduciary duty.

What, then, is a fiduciary duty? Again, no one knows, but the courts seem to treat every legal duty of a public official as “fiduciary.” Five pages of the 91-page Ryan indictment are devoted to setting forth the “Laws, Duties, Policies and Procedures Applicable to” the defendants. None of the laws listed in this section are federal laws. They include provisions of the Illinois State Constitution, state criminal laws, non-criminal state regulations, a policy memorandum of the Illinois Secretary of State’s office, and George Ryan’s announced personal policy of not accepting gifts worth more than $50. With occasional exceptions, the indictment’s later allegations of wrongdoing make no effort to specify which of the asserted state law duties the defendants violated.

In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies.

In the Ryan case, the prosecutors may transform even the violation of Ryan’s announced personal policy into a 20-year felony. If Ryan pledged not to accept gifts worth more than $50 and then did so despite his pledge, did he deprive the people of Illinois of the intangible right to his honest services? Does every broken promise by a politician (“read my lips”) now constitute mail fraud? Most of the “sweetheart deals” at the heart of the Ryan case do not appear to meet the legal definition of bribery. Nevertheless, the Ryan jury probably will be instructed to determine without substantial guidance whether these transactions deprived the state of the intangible right to Ryan’s honest services.

Comments

[saul levmore]

How should we think about the bootstrapping problem? Isn't it often true that federal criminal law builds on state law, including the state's definition of property? I take it that there is no objection to the 1872 law, so that if there were deprivation of another's "property" then federal criminal law could step in. And so the objection seems to be that what state politicians deprive us of might not be property belonging to any one of us but rather something that might have been awkwardly defined by statute but was instead shoehorned in by courts and prosecutors to the category of intangible rights (just as the theft of intellectual property has in some courts required new statutes and in some piggy-backed onto older property-based statutes). So what is the best way of dealing with a pol who, to take one example, directs an unnecessarily cushy contract to a supporter or relative? Would it really be that much better if there were a (yet another!) specific crime newly defined?

[Albert Alschuler]

Response to Saul Levmore: The answer can't be to turn itty-bitty state crimes into great big federal crimes -- not just incorporating state law but squaring it. And it can't be to abandon the rule of law altogether. At the end of these posts on the Ryan trial, I may offer some thoughts about what legislation would be necessary to eliminate the "functional equivalent" of bribery from public life and whether we'd really want it.

[Moe Levine]

Does every broken promise by a politician (“read my lips”) now constitute mail fraud?

It really amuses some of us to see plain meaning folks having to come to grips with plain language. The mail fraud statue makes a false promise a crime.

Moe

[Jack Stanset]

An addittional problem is that US Attorney's are political appointees. The decision to prosecute a state politician is being made by a federal politician. Now, with the extreme vagueness of this statute, it is open season on political witch hunts. The US Attorney in the Eastern District of California, just recently prosecuted a Democratic State official, for failing to disclose a business position where he made "no" money. He used a state statute that is civil and turned it in to a federal felony. see US v. Alan Sawyer (2005).

[Steve Woorley]

The courts need to modify this statute. 1346 is out of control and allows US attorney to target any state official they don't like. I heard that the Sawyer case involved a violation of a minor civil infraction.

[Jim Weis]

Is there any effort under way to amend 1346 to give it definition and limits. This statute is out of control and invites political prosecutors to destroy people.

[Eric Corbet]

Breaking a campaign promise may be honest services mail fraud. We had the Salem Witch Hunts, Red Scare, Interning of Japanese, and now republicans prosecutors have a new tool to do mischief, Title 18 section 1346, Honest Services Mail Fraud.

[Steve Hassart]

There is a knew statute to apply honest services mail fraud to congressman. Interestingly, they define it in such bright line way that what happen in US v. Sawyer, would never happen to a congressman

[Steve Hassart]

There is a new statute to apply honest services mail fraud to congressman. Interestingly, they define it in such bright line way that what happen in US v. Sawyer, would never happen to a congressman

[Joan A. Conway, Pro Se Litigant and C.P.A.]

I am about to try this law out!

I have been having problems with two states:
1. California, Section 706(f)(1) of Title VII and 714 of Title VII, 42 U.S.C. Sections 2000e-5 and 2000e-13, federal officer violations, under the absence of a Chief of the EEOC during the Clinton years and Gilbert Casellos, EEOC Chief. Failure to provide the complainant with a U.S. Department of Justice investigation and a right-to-sue letter for a state employee, which denied me relief and justice in 94CV6826/94CV7776(state claims), appellate nos. 97-3584, 97-3585, and 05-3237, under a petition for a writ of habeas corpus, recently denied as well as frivolous appeal, and the underlying case 05CV2570, naming Arnold Schwarzenegger and George W. Bush as defendants in violation of the Americans with Disabilities Act, and Public Employee Act, as well as an Ordinary Tort for Negligence was dismissed as being "moot" for an inform a pauperis and appointment for an attorney, by Judge Joan B. Gottschall, all orders issued on May 5, 2006. I was sanction $1,000, unjustly.
2.Illinois, food stamps and medicaid 'spend-down' and mediplan violations, as well as failure to recognize disability until it turned into 'age' for a qualified individual. But at that time there was a systematic effort to get rid of me in the Department of Human Services by my Caseworker, Jeanette Williams, and her predecessor(s), and their supervisor(s), Charisse Cook, under various acting Local Office Administrator(s), Maria Montes.

[Joan A. Conway, Pro Se Litigant and C.P.A.]

Further, I wish to insert in the previous Post that the inform a pauperis problem for a civil rights litigant, pro se, are arising from the Prison Litigation Reform Act, 28 U.S.C. Section 1915, which restricts filings, and bars filings on appeal for the same reason.
This is alleged to be an invalid law, under the Declaration of Rights, Separation of Powers, Article 3, Section 2, and under the Immunities and Privileges Clause, Article 4, Section 2, and held to be repugnant to the United States Constitution and the State of Illinois' constitution and the State of California's constitution.
The exclusion of civil rights charges of discrimination by obstructing the United States Department of Justice's investigation and right-to-sue letter by the EEOC implementation policies, when the staff was offered incentives to close charges without a Chief of EEOC is most oppressive and requires a constituency of a large body of supporters from the civil rights point of view and possibly from the prisoner's point of view, as well as for the counselors' point of view. Does anyone care about these gross violations of our Rights? Please contact me, Joan A. Conway, P. O. Box 578412, Chicago, Illinois 60657-8412, or at [email protected]

Please post your opinions and your social history that lends support to these issues in Illinois, or California, or in the United States, under the Full Fair Credit Clause, U.S. Constitution. A collective effort mailed to an appropriate person, Senator or Representative, or Organization can be effective in changing the PLRA, and Title VII, Section 706(f)(1). The welfare under dual jurisdiction suffers from state dominance over its federal funds and the federal government's desire to ignore the violations, in which the state enables the violations to protect the federal government's neglect. This comes full-circle back to the state's involvement in giving money to aliens taken from its citizens unjustly.

[Joan A. Conway]

My comments about honest services from politicians spurred by recent court decisions appears to have COOLED the thoughts of the bloggers.

So what if an intended bride groom makes false promises to his sweetheart. It is his romancing that really matters and not his promise of providing her with 80 million denari(s). Only her family is damaged by the misrepresentations in the marrigage contract and they are only collateral damage in the young man's zest to obtain a wealth naive bride.

Minions are not allowed to bribe, but officials, who deal in minions stock and trade are allowed to sell them and mischief surround their sale takes place by bribing the minions to devalue their services for some competitive reason, so that the officials can make a campaign contribution to the intended recipient of the minion, who got the better of the bargain.

I dare you to write a response to this debate about honest services. Why not allow origastic practices to assimmulate minions into the culture in order to foster bribery by taking advantage of natural sexual impulses between men and women? Why not allow debauchery to continue between the watch dogs of government and their intended audience, who would lose in the conflict of interest?

[Joan A. Conway]

This resubmission is to correct misspelled and grammatical errors, I submitted to the University of Chicago Law School Faculty Blog: concerning "The Intangible Right to Honest Services."

My recent comments about honest services from politicians spurred by federal court decisions appears to have COOLED the thoughts and responses from the bloggers.

So what if an intended bride groom makes false promises to his sweetheart!

It is his romancing of her that really matters and not his false promise of having 80 million denarii to win her hand in marriage.

Only his intended bride's family is damaged by his negligence, misrepresentations, and fraud in a marriage contract.

Example: His torts are the "unintended consequence" of his suit and the parents are collaterally damaged as a result of a young man's zest to obtain the hand of a wealthy naive young woman, not on equal footing with her suitor. Many Mideastern lawsuits arise from this deceit.

In the United States, minions are usually not allowed to bribe in their daily interstate transactions, but officials skirt the law.

These official(s) deal in their stock and trade of minions, or human resources, and are allowed to sell their human resources to their corporate taxpayers. Often mischief surrounds their sale or trade.

The minions' human services to their governmental employer are systematically devalued to avoid competition.

The officials sell or trade the devalued minions' services to their corporate taxpayers after training them with specialized skills.

The benefits of the minions' specialized skills are therefore an instrument of government.

The officials, elected and non-elected ones, can receive campaign contributions from their corporate taxpayers in exchange for the devalued minions' services in specialized skills without any accountability in the swap.

Both the corporate taxpayer and the official(s) have eliminated the middleman, the minion, who might be the watchdog of the corporate/government employers.

Sometimes the corporate/government/military employers.

Corporate taxes are negotiated from the minions devalued specialized skills/services and the citizens receive less revenue money from the tax loophole(s) in the transfer of the officials acquiring campaign contributions from the corporate taxpayers, who have paid less taxes.

I dared the bloggers to write a response to these issues about these issues concerning honest services that some feel should receive Congressional reform in an amended act or recision.

Why not allow 'origastic practices,' as a custom to occur in order to assimilate these vulnerable government/corporate minions into "the human resource(s)factor."

As a potential campaign contribution(s)for the official(s) donated by the corporate taxpayer, this dishonest service culture fosters official bribery by taking advantage of the minions' natural sexual impulses, urges, and the government/corporate employers' need to maintain the male hierarchy in unionized labor to support seniority's high salaries.