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In June, the Supreme Court unanimously held that Enron's former CEO Jeffrey Skilling did not commit “honest services” fraud, ruling that the statute under which he was convicted must be limited to bribery and kickback schemes to avoid constitutional concerns over vagueness. Skilling v. United States, 130 S. Ct. 2896 (2010). The defense bar was heartened by these restrictions on a statute that federal prosecutors have used aggressively for years against public officials and more recently against corporate officers. The decision should curtail prosecution of a variety of conduct that the government would otherwise seek to criminalize through the statute. In contrast, the courts are expanding the reach of other criminal statutes to encompass conduct previously regarded as outside their scope.
United States v. Kaiser
In United States v. Kaiser, 609 F. 3d 556 (2d Cir. 2010), the Second Circuit abruptly lessened the government's burden of proof in securities fraud cases ' apparently catching even the government by surprise ' holding that the government need not prove that the defendant knew he was violating the securities laws. Kaiser arose out of allegations that the defendant fraudulently reported inflated company earnings in violation of securities laws, including ' 32(a) of the Exchange Act, which criminalizes “willful” violations. Both the defendant and the government requested that the district court instruct the jury that willfulness requires that the defendant know his conduct is illegal.
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