Surgery with a Meat Axe: Using Honest Services Fraud to Prosecute Federal Corruption

Article excerpt

I. INTRODUCTION: PROSECUTION OF FEDERAL CORRUPTION IN THE AGE OF ABRAMOFF

The scandal involving lobbyist Jack Abramoff has been the most significant public corruption investigation to hit the nation's capital in years. (1) In more than a dozen cases to date, federal public officials and lobbyists (including Abramoff himself) have pleaded guilty to charges that they gave or accepted trips, tickets for concerts and sporting events, lavish meals, and other gifts, in connection with the performance of official acts. Robert Ney, the only Member of Congress to be convicted in the scandal thus far, pleaded guilty to accepting a series of gifts from Abramoff and his associates over several years in exchange for taking official actions that would benefit Abramoff's clients. (2)

The criminal behavior at the center of the Abramoff scandal sounds like textbook public corruption typically charged as bribery or gratuities: individuals paying off public officials either to influence them to act in a certain way or to reward them for actions already taken. It might surprise many to learn, then, that among all those convicted in the Abramoff investigation--including Congressman Ney and Jack Abramoff himself--almost no one has been charged with violating the federal bribery and gratuities law. By contrast, in each case a leading charge--and in many cases the only charge--has been honest services mail or wire fraud, or conspiracy to commit honest services fraud. (3)

In an honest services fraud public corruption case, the defendants are charged with using the mail or wires to further a scheme to defraud citizens of their right to the fair, honest, and impartial services of their public officials. (4) Historically, honest services fraud involving public officials was primarily a vehicle for the federal prosecution of state and local corruption. The principal federal bribery and gratuities statute, 18 U.S.C. [section] 201, generally applies only to federal public officials. (5) Over the past four decades, as federal prosecutors increasingly focused on pursuing state and local corruption, they required other statutory tools. Honest services mail and wire fraud emerged as a leading theory of prosecution in such cases.

In recent years, however, prosecutors increasingly have employed the honest services fraud theory to prosecute not only state and local corruption but also corrupt conduct by federal public officials. This move has come in the wake of court decisions--chief among them the Supreme Court's 1999 decision in the Sun-Diamond case (6)--that have narrowed the scope of the federal bribery and gratuities law and made prosecutions under that statute more difficult. Faced with these restrictive court rulings, prosecutors appear to be turning with increasing frequency to honest services fraud as an alternative to traditional bribery or gratuities charges. (7)

In a typical federal corruption case, honest services fraud will now be easier to charge and prove than bribery or gratuities, will apply to a wider range of conduct, and will carry a greater potential penalty. From the prosecutor's standpoint, what's not to like? It is therefore hardly surprising that federal prosecutors are turning to the honest services theory as a ready substitute for the more finicky bribery and gratuities law. Honest services fraud is on a path to becoming the default statute of choice among prosecutors of federal public corruption cases--the new "darling of the modern prosecutor's nursery." (8)

This trend towards honest services fraud has received relatively little scrutiny; most of these cases are resolved through guilty pleas, so the legal foundations of the theory are seldom tested. But this expanding use of honest services fraud may be expanding the scope of federal public corruption prosecutions beyond the proper boundaries. Prosecutors freed of the more rigorous proof requirements of the bribery and gratuities law may, as one federal judge cautioned, use the "free swinging club of mail fraud" (9) to pursue an ever-wider range of conduct under the vague banner of honest services. …