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The Coming Honest-Services Storm
Not since 1987, when the Supreme Court issued its bombshell decision in McNally v. United States, 483 U.S. 350 (1987), has the honest-services mail fraud doctrine received as much attention as in recent months. In addition to the continuing drumbeat of high-profile federal prosecutions in district courts ' from lobbyist Jack Abramoff to former Governor Rod Blagojevic of Illinois to powerhouse New York state senator Joe Bruno ' the Supreme Court will hear three cases this term involving the controversial doctrine. When the dust settles, it is possible that one of prosecutors' favorite weapons will have been sharply restricted or taken away.
A Bit of History
The honest-services doctrine sprang to life in the early 1970s as a creative application of the mail and wire fraud statutes. It was later eliminated outright by McNally but reborn, Phoenix-like, in 1988 as a tersely worded statute: “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.” 18 U.S.C. ' 1346. The modern development of the honest-services doctrine has by now been well documented in these pages. See Daniel R. Alonso, Milberg Weiss and the 'Nigerian Barge' Case: Contours of Honest-Services Mail Fraud, Bus. Crimes Bull., Sept. 2006, at 1.
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