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Gratuities and Honest Services Fraud
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?
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