In the Courts

In United States v. Turner, No. 05-6326 (6th Cir. Aug. 31, 2006), the Sixth Circuit held that election fraud does not fall within the scope of honest-services fraud because although 18 U.S.C. ' 1346 addresses the deprivation of the intangible right of honest services, it does not apply to other intangible rights. The court also declined to apply 18 U.S.C. ' 1341 to election fraud under a 'salary fraud' theory.

Defendant was convicted of mail fraud and conspiracy to commit mail fraud in connection with schemes to commit election fraud in two separate electoral campaigns. The allegations included both making illegal campaign contributions and 'vote hauling,' which is the practice of making illegal payments to transport voters to the polls. The mail fraud convictions were secured under two theories: first, that the defendant's actions deprived citizens of the intangible right to the honest services of a candidate under 18 U.S.C. ' 1346; and second, that the defendant's actions violated 18 U.S.C. ' 1341 in that they amounted to a scheme to defraud the state or its citizens of money or property in the form of the salary associated with the public office at issue in the election. On appeal, the Sixth Circuit held that election fraud does not fall within the scope of honest-services fraud as codified by 18 U.S.C. ' 1346, noting that although 1346 was passed in reaction to McNally v. United States, 483 U.S. 350 (1987), which invalidated the use of ' 1341 to prosecute deprivations of 'intangible rights,' ' 1346 does not encompass all the intangible rights (such as the right to fair elections) which were recognized by the courts before the McNally decision. Rather, the statute is limited to the intangible right to honest services, which does not include the right to fair elections. The circuit court went on to hold that the salary fraud theory was also inapplicable because election fraud may deprive the citizens of the right to select the person who receives the salary, but it does not deprive the government of the salary itself, which must be paid to someone in any event. The circuit court vacated the convictions and dismissed the indictment, commenting that if Congress intends for the mail fraud statutes to apply to state election fraud it must 'speak more clearly than it has.'