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No. 08-1394
In the Supreme Court of the United States
J
EFFREY
K.
S
KILLING
,
PETITIONER
v.
U
NITED
S
TATES OF
A
MERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
E
LENA
K
AGAN
Solicitor GeneralCounsel of Record
M
YTHILI
R
AMAN
Acting Assistant AttorneyGeneral
M
ICHAEL
R.
D
REEBEN
Deputy Solicitor General
D
AVID
A.
O’N
EIL
Assistant to the Solicitor General
J
OEL
G
ERSHOWITZ
K
EVIN
G
INGRAS
Attorneys Department of JusticeWashington, D.C. 20530-0001(202) 514-2217
(I)
QUESTIONS PRESENTED
1.Whether, to convict petitioner of conspiring tocommit wire fraud by depriving his employer and itsshareholders of the right to petitioner’s honest services(18 U.S.C. 1343, 1346), the government was required toprove that petitioner intended to obtain some privategain.2.Whether 18 U.S.C. 1346 is unconstitutionally vague.3.Whether the district court erred in denying pe-titioner’s motions for a change of venue.
(III)
TABLE OF CONTENTS
PageOpinion below.........................................1Jurisdiction...........................................1Statement............................................1Summary of argument................................14 Argument:I. The denial of petitioner’s venue transfer motions didnot violate his fair trial rights ....................18 A.Because the jury that decided his case was im-partial, petitioner has failed to establish a consti-tutional violation...............................191. The Constitution requires trial before an im-partial jury..................................192. Petitioner’s jury was impartial.................21B.Petitioner cannot establish a constitutional viola-tion based on presumed jury prejudice............241. This Court’s decisions do not support anirrebuttable presumption of juror prejudice.....252. The presumption petitioner proposes wouldconflict with well established principles andpreclude trial of the most prominent cases.......293. Even if juror prejudice may be presumed insome cases, that presumption would not applyhere........................................32C.The court of appeals correctly concluded that,even if a presumption of juror prejudice applied,the government rebutted it on this record.........35II.The honest services statute is constitutional, andpetitioner’s conviction is valid....................36 A.Section 1346 is not unconstitutionally vague........371.Section 1346 reinstated the pre-
McNally
defi-nition of honest services fraud.................37
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