Volume 55

Remember Me, “Part C”? Honest Services Fraud Schemes Involving Bribery Under “Part C” of the Federal Bribery Statute Post-McDonnell

by Bridget Vuona

In 1988, Congress added a new type of mail or wire fraud offense to federal prosecutors’ arsenal: 18 U.S.C. § 1346, commonly known as “honest services fraud.” Section 1346 applies to both private individuals and public officials on the federal, state, and local level; however, this article focuses solely on its application to public officials. Because public officials owe citizens their honest services, honest services fraud offenses involve use of the mails or wires to further activity that, by its very nature, deprives citizens of the honest services owed to them. To secure an honest services fraud conviction, the government must prove that a public official failed to disclose his or her breach of the duty to provide honest services as it is the non-disclosure that implicates the fraudulent aspect of the crime. 

Initially, honest services fraud occurred when public officials failed to disclose conflicts of interest, self-dealing, or participation in bribe or kickback schemes. Seven years ago, however, the Supreme Court narrowed the scope of the honest services fraud statute in Skilling v. United States. Although seminal in its decision to limit honest services frauds to only those schemes involving bribes and kickbacks, Skilling left unanswered an important question: what constitutes bribery for the purposes of honest services fraud prosecutions?

Whereas the definitions of bribery contained in the federal bribery statue—18 U.S.C. § 201—emerged as obvious reference points for defining bribery under § 1346, lack of clear direction from the Supreme Court and other incorporation issues resulted in a lack of uniformity among the lower courts. Amidst this confusion, the Supreme Court finally weighed in on the matter in deciding McDonnell v. United States, a case involving bribery-variety honest services fraud charges brought against a state official. Accordingly, this article focuses on the state of the law in the wake of McDonnell. Ultimately, this article predicts that because the McDonnell Court limited the realm of acts satisfying the definition of bribery contained in the more-commonly-charged provisions of the federal bribery statute, federal prosecutors will now attempt to make more use of the lesser-charged, broader sections of the statute in prosecuting public officials for engaging in honest services fraud schemes involving bribery. 

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