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A Court Again Quashes 'Doctrinal Novelty' By Prosecutors

BY Joseph F. Savage, Jr.
May 02, 2015

We've been down this road before: Congress enacts broad anti-fraud provisions and “creative” prosecutors, aided and abetted by compliant judges, invent crimes until told to stop. Stretching by prosecutors, and later contraction by some courts, has played out across a number of corruption related statutes, with courts ultimately requiring prosecutors to prove misconduct. For example, the U.S. Supreme Court decided in United States v. Sun-Diamond Growers of California (1999), that before the government may establish a violation of the federal bribery statute, it must prove a quid pro quo. Similarly, in United States v. McCormack (1991), the Court decided, contrary to the DOJ's view, that campaign contributions are only violations of the anti-fraud statute if there is a specific quid pro quo.

Again in McNally v. United States (1987), the Supreme Court struck down the expansive “honest services mail fraud doctrine.” Later, in Skilling v. United States (2010), it again limited the amorphous fraud provisions of the mail fraud statute to cases where the Government can prove a quid pro quo.

The effort to limit prosecution to clear misconduct ' rather than allowing prosecutors to condemn any behavior they find distasteful ' continued last month when the Supreme Court held that the anti-shredding provision of the Sarbanes-Oxley Act does not criminalize the throwing of fish overboard. The refrain is the same: “[I]t is appropriate, before we choose the harsher alternative [advocated by the DOJ], to require that Congress should have spoken in language that is clear and definite.” Yates v. United States (2015).

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