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Gratuities and Honest Services Fraud

By Gary Stein and Eli J. Mark
August 02, 2014

In Skilling v. United States, 130 S.Ct. 2896 (2010), the U.S. Supreme Court limited the scope of the honest services fraud statute (18 U.S.C. ' 1346) to “bribery and kickback” schemes. But those terms are not self-defining, and the Court did not define them.

This article examines one question that Skilling leaves unanswered: Must a “bribe or kickback” involve a quid pro quo, i.e., an intent to give or receive something in exchange for favorable official action? Or may an honest services fraud prosecution be predicated upon a payment made merely as a reward for official action ' in other words, a gratuity?

Skilling

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