How can the public be expected to know what the statute means when the judges and

prosecutors themselves do not know, or must make it up as they go along?

Second Circuit Judge Jacobs

When Joe Bruno walks into a federal courtroom in the Northern District of New York for

his trial on charges of fraud, he may well encounter a sitting judge as confused about the

meaning of the federal charges he faces as he himself is. In fact the law he allegedly violated is

so shrouded in confusion that its only consistency seems to be its ability to produce judicial head

scratching and scholarly consternation.

The statute at issue, 18 U.S.C. §1346, declares that the phrase “scheme or artifice to

defraud” as used in the mail and wire fraud statutes includes a “scheme or artifice to deprive

another of the intangible right of honest services.” However, “no one knows what this language

means,” writes Albert Alschuler of the University of Chicago Law School. (See “The Intangible

Right to Honest Services,” October 16, 2005, The Faculty Blog

http://uchicagolaw.typepad.com/faculty/2005/10/the_intangible_.html). Likewise, both the

National and New York Associations of Criminal Defense Lawyers have lamented, “Absent

from this statute, or any other statute within the federal code, is a definition of what constitutes

‘the intangible right of honest services.’” (Amici Curiae Brief, U.S. v. Rybicki, 354 F.3d 124).

Or consider the view of constitutional law professor Rick Hills of New York University School

of Law: “The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18

U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand

their sway over the political process in harmful and even corrupt ways, all in the name of

fighting corruption.” http://prawfsblawg.blogs.com/prawfsblawg/criminal_law/

 Within the Second Circuit, it appears there is as much confusion about §1346 as there is

disagreement across Circuits. The statute has had a tumultuous ride, to say the least. It did

survive a strong assault on its constitutionality in 2003 when the Court of Appeals, sitting in

banc in U.S. v. Rybicki, overruled its own three-judge panel which had found the statute void for

vagueness, and declared the law constitutional as applied to the Rybicki defendants. The Rybicki

decision is an exhaustive treatment, but its net effect seems to have only added to the confusion.

In his dissent, Judge Jacobs is clearly exasperated:

If the statute means what the majority says it means, eight judges in this Circuit failed
to understand it in Sancho, Handakas, and Rybicki. Of course, overturned
convictions and in banc rejection of panel rulings do not prove facial vagueness. But
this Circuit’s long experience with §1346 is nevertheless telling evidence that most
lawyers and judges, not to speak of ordinary laymen and prospective defendants,
cannot be expected to understand the statute . . . It is only too obvious that there is no
settled meaning to the phrase ‘the intangible right of honest services’ that is capable
of providing constitutionally adequate notice. If there were, the judges and
prosecutors in this Circuit would certainly know it.

Just prior to the Rybicki ruling, Judge Jacobs, now Chief Judge of the Court of Appeals

for the Second Circuit, had written the majority opinion in Handakas where he held that the

honest services statute was void for vagueness as applied to the defendants’ conduct. One year

later, Rybicki overruled Handakas’ constitutional ruling on separate grounds; however, in the

Rybicki dissent, Judge Jacobs points out, “the majority preserves the holding of Handakas, which

means that the prosecutors in the Eastern District of New York did not understand what the

statute meant. How can the public be expected to know what the statute means when the judges

and prosecutors themselves do not know, or must make it up as they go along?”

Such prosecutorial confabulation is already evident in the case against Senator Bruno. In

the indictment, Acting U.S. Attorney Andrew Baxter tells us, quite correctly, that the Senator

had a fiduciary relationship with the State of New York and its citizens. However, that
relationship supposedly required the Senator’s “disinterested decision-making when performing

his official duties” and “full disclosure of the potential motivation behind, and material

information relevant to, his official acts, including full disclosure of conflicts of interest, which

would provide the citizens of the State of New York and other government officials with the

information necessary to evaluate his motivations for officials acts.”

Somehow, a politician’s fiduciary duty has become synonymous with “disinterested

decision-making,” despite the fact that this unholy merger potentially criminalizes “an

officeholder who has made a decision in order to please a constituent or contributor, or to

promote re-election, rather than for the public good (as some prosecutor may see the public

good).” Moreover, the requirement of “full disclosure of conflicts of interest which would

provide the citizens . . . and other government officials with the information necessary to

evaluate . . . motivations for official acts” is an exercise in limitless futility; any fathomable

conflict of interest qualifies as “information necessary to evaluate motivations for official acts.”

Such grandiose disclosure requirements are the product of unchecked prosecutorial

discretion. They amount to, as the Supreme Court feared, “the federal government . . . setting

standards of disclosure and good government for local and state officials.” Consider that federal

prosecutors are political appointees with political motivations and one begins to wonder whether

their motivations should be subject to like scrutiny, lest they betray the public trust by using their

office for personal political gain. Should not the U.S. Attorney disclose party affiliation or

professional aspirations to a jury in the prosecution of a state or local elected official just to

affirm that his heart is in the right place?

The Bruno indictment demonstrates a shaky grasp of the conduct that constitutes theft of

honest services. The government alleges that Bruno devised a scheme to defraud by entering
into personal financial relationships for his own compensation with entities, i.e., labor unions,

which concurrently had business before the state legislature, an arrangement he failed to publicly

disclose. The alleged purpose of the scheme was to exploit his official position as State Senate

Majority Leader because he knew and believed that his “reasonably perceived ability to

influence official action would, at least in part, motivate those he contacted to enter into financial

relationships beneficial to his personal financial interests.” Lastly, Bruno allegedly took

“discretionary official action on legislative, funding, contract, and regulatory issues benefitting

the interests of labor unions whose officials he had contacted and solicited on behalf of Wright

without disclosing the nature of his financial relationships or his contacts for personal

compensation and enrichment with those labor unions.”

First, a “reasonably perceived ability to influence official action” falls far short of

actually influencing official action in exchange for brokerage business. Furthermore, in order

for this to amount to a deprivation of honest services, Senator Bruno must have undertaken the

unidentified legislative actions that benefitted the unions BECAUSE he had a personal interest.

In other words, in order to deprive the public of its right to his honest services, his decision to

benefit the union must have been a biased one that resulted in personal gain. See U.S. v.

Woodward, 149 F.3d 46, C.A.1 (Mass.) 1998. No such allegation exists, and it cannot be

deemed fair to automatically presume that, by definition, failure to disclose a personal interest

renders the decision maker biased.

All of which returns us to Judge Jacobs’ concern that prosecutors and courts are making

up the law “as they go along.” Rather than fashion a crime out of the facts, courts must impose

limiting principles upon the statute to prevent federal prosecutors from trawling the halls of state

government and sweeping up unwary legislators in the wide net of 18 U.S.C. §1346. Until then,
“The plain meaning of ‘honest services’ in the text of §1346 simply provides no clue to the

public or the courts as to what conduct is prohibited under the statute.” Handakas at 104.