How Can The Public Be Expected To Know What The

How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along? Second Circuit Judge Jacobs

When Joe Bruno walks into a federal courtroom in the Northern District of New York for his trial on charges of fraud, he may well encounter a sitting judge as confused about the meaning of the federal charges he faces as he himself is. In fact the law he allegedly violated is so shrouded in confusion that its only consistency seems to be its ability to produce judicial head scratching and scholarly consternation. The statute at issue, 18 U.S.C. §1346, declares that the phrase “scheme or artifice to defraud” as used in the mail and wire fraud statutes includes a “scheme or artifice to deprive another of the intangible right of honest services.” However, “no one knows what this language means,” writes Albert Alschuler of the University of Chicago Law School. (See “The Intangible Right to Honest Services,” October 16, 2005, The Faculty Blog http://uchicagolaw.typepad.com/faculty/2005/10/the_intangible_.html). Likewise, both the National and New York Associations of Criminal Defense Lawyers have lamented, “Absent from this statute, or any other statute within the federal code, is a definition of what constitutes ‘the intangible right of honest services.’” (Amici Curiae Brief, U.S. v. Rybicki, 354 F.3d 124). Or consider the view of constitutional law professor Rick Hills of New York University School of Law: “The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption.” http://prawfsblawg.blogs.com/prawfsblawg/criminal_law/

Within the Second Circuit, it appears there is as much confusion about §1346 as there is disagreement across Circuits. The statute has had a tumultuous ride, to say the least. It did survive a strong assault on its constitutionality in 2003 when the Court of Appeals, sitting in banc in U.S. v. Rybicki, overruled its own three-judge panel which had found the statute void for vagueness, and declared the law constitutional as applied to the Rybicki defendants. The Rybicki decision is an exhaustive treatment, but its net effect seems to have only added to the confusion. In his dissent, Judge Jacobs is clearly exasperated: If the statute means what the majority says it means, eight judges in this Circuit failed to understand it in Sancho, Handakas, and Rybicki. Of course, overturned convictions and in banc rejection of panel rulings do not prove facial vagueness. But this Circuit’s long experience with §1346 is nevertheless telling evidence that most lawyers and judges, not to speak of ordinary laymen and prospective defendants, cannot be expected to understand the statute . . . It is only too obvious that there is no settled meaning to the phrase ‘the intangible right of honest services’ that is capable of providing constitutionally adequate notice. If there were, the judges and prosecutors in this Circuit would certainly know it.

Just prior to the Rybicki ruling, Judge Jacobs, now Chief Judge of the Court of Appeals for the Second Circuit, had written the majority opinion in Handakas where he held that the honest services statute was void for vagueness as applied to the defendants’ conduct. One year later, Rybicki overruled Handakas’ constitutional ruling on separate grounds; however, in the Rybicki dissent, Judge Jacobs points out, “the majority preserves the holding of Handakas, which means that the prosecutors in the Eastern District of New York did not understand what the statute meant. How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Such prosecutorial confabulation is already evident in the case against Senator Bruno. In the indictment, Acting U.S. Attorney Andrew Baxter tells us, quite correctly, that the Senator had a fiduciary relationship with the State of New York and its citizens. However, that

relationship supposedly required the Senator’s “disinterested decision-making when performing his official duties” and “full disclosure of the potential motivation behind, and material information relevant to, his official acts, including full disclosure of conflicts of interest, which would provide the citizens of the State of New York and other government officials with the information necessary to evaluate his motivations for officials acts.” Somehow, a politician’s fiduciary duty has become synonymous with “disinterested decision-making,” despite the fact that this unholy merger potentially criminalizes “an officeholder who has made a decision in order to please a constituent or contributor, or to promote re-election, rather than for the public good (as some prosecutor may see the public good).” Moreover, the requirement of “full disclosure of conflicts of interest which would provide the citizens . . . and other government officials with the information necessary to evaluate . . . motivations for official acts” is an exercise in limitless futility; any fathomable conflict of interest qualifies as “information necessary to evaluate motivations for official acts.” Such grandiose disclosure requirements are the product of unchecked prosecutorial discretion. They amount to, as the Supreme Court feared, “the federal government . . . setting standards of disclosure and good government for local and state officials.” Consider that federal prosecutors are political appointees with political motivations and one begins to wonder whether their motivations should be subject to like scrutiny, lest they betray the public trust by using their office for personal political gain. Should not the U.S. Attorney disclose party affiliation or professional aspirations to a jury in the prosecution of a state or local elected official just to affirm that his heart is in the right place? The Bruno indictment demonstrates a shaky grasp of the conduct that constitutes theft of honest services. The government alleges that Bruno devised a scheme to defraud by entering

into personal financial relationships for his own compensation with entities, i.e., labor unions, which concurrently had business before the state legislature, an arrangement he failed to publicly disclose. The alleged purpose of the scheme was to exploit his official position as State Senate Majority Leader because he knew and believed that his “reasonably perceived ability to influence official action would, at least in part, motivate those he contacted to enter into financial relationships beneficial to his personal financial interests.” Lastly, Bruno allegedly took “discretionary official action on legislative, funding, contract, and regulatory issues benefitting the interests of labor unions whose officials he had contacted and solicited on behalf of Wright without disclosing the nature of his financial relationships or his contacts for personal compensation and enrichment with those labor unions.” First, a “reasonably perceived ability to influence official action” falls far short of actually influencing official action in exchange for brokerage business. Furthermore, in order for this to amount to a deprivation of honest services, Senator Bruno must have undertaken the unidentified legislative actions that benefitted the unions BECAUSE he had a personal interest. In other words, in order to deprive the public of its right to his honest services, his decision to benefit the union must have been a biased one that resulted in personal gain. See U.S. v. Woodward, 149 F.3d 46, C.A.1 (Mass.) 1998. No such allegation exists, and it cannot be deemed fair to automatically presume that, by definition, failure to disclose a personal interest renders the decision maker biased. All of which returns us to Judge Jacobs’ concern that prosecutors and courts are making up the law “as they go along.” Rather than fashion a crime out of the facts, courts must impose limiting principles upon the statute to prevent federal prosecutors from trawling the halls of state government and sweeping up unwary legislators in the wide net of 18 U.S.C. §1346. Until then,

“The plain meaning of ‘honest services’ in the text of §1346 simply provides no clue to the public or the courts as to what conduct is prohibited under the statute.” Handakas at 104.