St. Mary's Law Journal


Pamela Mathy


The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court fashioned elements to provide clearer notice as to criminal conduct. The assessment of the need for new legislation to fill the void created may be guided by thoughtful consideration of the development of honest services fraud prosecutions and the difficulties in fashioning defining principles. Under the honest services theory of mail and wire fraud, the focus is on the corruption rather than the victim or the offender. Under this theory the Government must prove the victim was deprived of the right to honest services. The United States Supreme Court’s decision in Skilling resolved the inconsistencies and conflicts in the interpretation of honest services fraud under 18 U.S.C. § 1346. Skilling restored §§ 1346, 1341, and 1343 to their traditional focus on schemes to defraud or deprive victims of money or property. The statutes further provide clear notice to citizens as to what conduct is prohibited, but Skilling also removed undisclosed self-dealing from the scope of federal honest services law. It is likely Congress will be called upon to restore the ability of federal prosecutors to address this significant category of fraudulent and corrupt conduct.


St. Mary's University School of Law