Academic journal article Boston University Law Review

The Commonwealth's Right to "Honest Services": Prosecuting Public Corruption in Massachusetts

Academic journal article Boston University Law Review

The Commonwealth's Right to "Honest Services": Prosecuting Public Corruption in Massachusetts

Article excerpt

Massachusetts politicians have found themselves repeatedly in the crosshairs of federal prosecutors seeking to crack down on public corruption. But in light of the Supreme Court's landmark decision in Skilling v. United States, convicting corrupt state legislators and other public servants of so-called "honest services " fraud - long the preferred method of prosecuting official betrayals of the public trust - may no longer be quite as simple as it once was. This Note examines the structure of federal anti-corruption law available to punish the kind of political corruption that has plagued Massachusetts, with an emphasis on critically evaluating the evolving body of honest services law. It concludes - based on important but admittedly limited evidence - that as applied in Massachusetts and the First Circuit, the honest services fraud statute remains a practical and effective tool for combating political corruption. Because there is little reason to believe that more robust criminal enforcement measures are in fact necessary or would even appreciably improve anti-corruption efforts, this Note suggests that any future reform should focus its efforts on changing the letter of the law to better reñect its real reach and efficacy as a tool to fight public corruption. Such an approach would promote the interests of transparency and fair notice in the criminal code, improve deterrence, and demonstrate a symbolic commitment to confront public corruption head on, rather than circuitously through the vague and general language of the existing honest services statute.

Introduction

On June 15, 2011, Salvatore F. DiMasi became the third consecutive Speaker of the Massachusetts House of Representatives to be found guilty of a federal crime.1 DiMasi's trial and conviction naturally highlighted the issue of political corruption in Massachusetts, which has become a matter of serious public concern in recent years. To the extent such a problem exists systemically, a full solution likely requires fundamental reform in the culture of state and local government. But federal criminal prosecutions have long played, and will continue to play, a significant role in addressing state-level political corruption. It is therefore well worth considering how the current body of federal anti-corruption law is positioned to take on political rot and dishonest government in the Commonwealth of Massachusetts.

Though Speaker DiMasi's actions and the corrupt scheme he was charged with perpetrating were well documented by the media,2 the legal basis for his conviction was less publicized. The major legal issue at trial revolved around the impact of a key 2010 Supreme Court decision, Skilling v. United States,3 with the parties sparring over how that case should influence the court's jury instructions.4 Casual observers of the trial naturally may have wondered why DiMasi's public corruption proceeding should hinge on the former Enron CEO's appeal of his conviction for corporate misconduct, and why both cases were prosecuted under the federal mail-fraud statute. The reason, in short, was that federal prosecutors in both cases relied on the nebulous "honest services" doctrine of fraud to pursue convictions.5 That prosecutorial tool - ingeniously flexible or unfathomably vague, depending on one's perspective - extends criminal mail- or wire-fraud penalties to cover public officials, corporate fiduciaries, or anyone else who perpetrates "a scheme or artifice to deprive another of the intangible right of honest services."6

Somewhat strangely, the mail- and wire-fraud statutes have been the principal tools of federal prosecutors to combat corruption in state politics. The "intangible rights" and "honest services" conception of fraud codified therein was recognized, but limited, by the Supreme Court in Skilling1 But many of the interpretive questions traditionally raised and debated in common law fraud cases remain to be answered. Therefore, there will continue to be federal common law development of the honest services doctrine in the courts of appeals, even as individual issues may be resolved by the Supreme Court in post-Skilling clarifications of the law. …

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