ABA: U.S. Supreme Court Summaries – Mail Fraud and “Honest Services” – Three Cases

Supreme Court Case Summaries: Professor Rory Little’s Perspective
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

These summaries are written by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. They represent his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to members, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S.. Supreme Court Summaries – Criminal Cases June 24, 2010
Mail/Wire Fraud and “Honest Services” – Three cases:

Skilling v. United States, http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf

Black v. United States, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

Weyhrauch v. United Sates, http://www.supremecourt.gov/opinions/09pdf/08-876.pdf

On June 24, the Court issued its long-awaited opinions in the trio of “honest services” mail and wire fraud cases. The Court (6-3) upheld the “honest services” statute, but limited it to schemes of “bribery and kickbacks.” Interestingly, in the lead case of former Enron CEO Jeff Skilling, the Court’s major effort was spent not on mail fraud, but on the pretrial-publicity juror bias claims that Skilling presented, and the Skilling opinion will stand more as a major decision in that constitutional area than on the statutory definition (which is changeable by Congress) of mail fraud. Each holding (due process and mail fraud) was a 6-3 vote, but different Justices were the dissenters on each. And, perhaps significantly or perhaps not, this is the first decision in which the two women on the Court disagreed in written opinions, Justice Ginsburg writing the majority and Justice Sotomayor dissenting on the due process-fair trial ruling.

The various Skilling opinions consume 114 pages. The Court also eclipses what probably was not a record of three days ago (the six-page syllabus in Humanitarian Law Prroject) with a nine-page syllabus here. Yes, there are a lot of pages here, but nine pages for an allegedly accessible “summary” of the opinion is, for the Court, pretty silly.

In Black, the Court applied its Skilling mail fraud ruling to hold that Conrad Black’s jury instructions were erroneous, and remanded for a harmless-error analysis (as it did in Skilling). The Court also reversed the Seventh Circuit’s ruling that Black had forfeited his jury instruction challenge by opposing the government’s more-precise special verdict form, and provides an important discourse on courts of appeal imposing sanctions that the Federal Rules of Criminal Procedure don’t specify, without notice.

Finally, in one sentence the Court simply vacated the Ninth Circuit’s ruling in Weyhrauch and remanded for further proceedings in light of Skilling.

Summaries of the various Justices’ opinions follow.

and FEDERAL STATUTES (Mail/Wire Fraud and “Honest Services”)

Skilling v. United States, No. 08-1394, 130 S.Ct. ___ (June 24, 2010), reversing in part, affirming in part 554 F.3d 529 (5th Cir. 2009).

Holdings: 1. Constitutional Due Process (6 [5-1] – 3): Despite extensive adverse pretrial publicity in Enron case, a “presumption” of juror bias was not warranted, a change of venue was not constitutionally required, and the voir dire here was sufficient to ensure a fair trial.

2. Mail Fraud (6-3): The mail/wire fraud statutes’ definition of a scheme depriving of “honest services” must be restricted to bribery or kickback schemes, to avoid unconstitutional vagueness.

Facts: Honest Services: In 2001, Enron Corporation went bankrupt, and (relevant to the pretrial publicity discussion below), I will assume the reader is somewhat familiar with the massive adverse publicity and hostility this generated, against Enron, it’s officers, and “corporate greed” in general, particularly in Houston where Enron, and this trial, were located. Skilling was Enron’s CEO at the time, and he and Enron founder Kenneth Lay (who died after conviction) were indicted in 2004 for mail/wire fraud and securities fraud. The mail fraud counts charged that the defendants deceived their shareholders and the public regarding Enron’s financial status through various deceptive schemes, and thus deprived Enron and its shareholders of “the intangible right of [their] honest services.” Congress had expressly amended the mail fraud statute in 1987, after the Supreme Court’s McNally (1987) decision limiting mail fraud to schemes to deprive of “money or property,” to permit indictment for schemes to deprive of “honest services.” The Courts of Appeal had diverged widely on precisely what the “honest services” concept required, but unanimously upheld it against constitutional vagueness attacks. Here, the Fifth Circuit upheld Skilling’s mail fraud convictions without addressing his argument that “honest services” is unconstitutionally vague.

Impartial Jury Selection: Prior to his trial, Skilling moved for a change of venue due to massive adverse publicity. The showing of such publicity was quite impressive, although the district court described the publicity as “mostly … objective and unemotional” and not “sensational” – two findings that are frankly hard to accept on the record that both the majority and the dissent detail. The district court denied the change of venue motion, but agreed to implement special jury selection procedures. The court adopted the defense’s more detailed jury questionnaire and sent out a 77-question 14-page document before trial. The court also agreed to allow individual private questioning of each juror, including follow-up questioning by the lawyers. And the court allowed each defendant an extra peremptory challenge. Then, two weeks before jury selection was scheduled to begin, a third Enron co-defendant, Causey, pled guilty. The district court declined to send out a new questionnaire or move the trial, but did grant a two-week delay.

The selection of 12 jurors and 4 alternates took [only?] five hours. A number expressed opinions about the defendants’ guilt and other biases, and many jurors were dismissed for cause. Skilling objected to the final jury. After a four-month trial, the jury convicted Skilling on 19 counts, but acquitted on 9 insider training counts. The Fifth Circuit ruled that a presumption of bias was, indeed, required on this record, but that the district court’s “thorough” voir dire rebutted the presumption, and Skilling had not shown that any biased juror was actually seated. So his convictions, and lengthy sentence, were affirmed.

Ginsburg: Due Process (5-4, joined by Roberts, Scalia, Kennedy and Thomas): The Sixth Amendment guarantees a defendant trial in the district where the crime is committed. But constitutional due process, “if extraordinary local prejudice will prevent a fair trial,” may require a change of venue. [Ed. Note: The Court does not make clear whether this is a Due Process “fair trial” case, or a Sixth Amendment “impartial jury” case.] But not here. First, this is not the “extreme” case that requires a “presumption” of prejudice. In some of our prior cases, “a trial atmosphere that was utterly corrupted by press coverage” demanded it; but “prominence does not necessarily produce prejudice,” and “juror impartiality does not require ignorance” (Irvin, 1961). Unlike some prior cases, Houston is a huge metropolitan area with a diverse jury pool and it is “hard to sustain” the idea that 12 impartial jurors could not be found there. No evidence of a confession or other “smoking gun” evidence was publicized here. Four years elapsed between Enron’s collapse and the trial. “And of prime significance,” the jury here acquitted Skilling on 9 counts. Nor does the “sheer number of victims” require a presumption of prejudice; and here, “hindsight shows” that the empanelled “jurors’ links to Enron were either nonexistent or attenuated.” No venue change was constitutionally required. [Ed. Note: Interestingly, the Court unanimously agrees that a possibly more generous challenge to venue under FRCrP 21(a) is either not before the Court or forfeited. See dissent footnote 9. Skilling’s lawyers must feel great about that.]

As for “actual prejudice” infecting Skilling’s jury, “we disagree with Skilling’s [and the dissent’s] characterization of the voir dire and the jurors selected.” [Ed. Note: The detailed and fact-specific analyses of the majority and dissent, of juror questions and responses, will mercifully be omitted here. Needless to say, the majority’s and the dissent’s chosen fact-details paint different pictures on the point.] But it is important to note how deferential appellate courts need to be, to district courts’ assessments on the scene, which include not just local knowledge [Ed. Note: shall we also add local prejudices?] but also impressions of credibility and demeanor. The judge here took special measures and seemed attuned to the need to select fair jurors, and the record cannot support a conclusion that it was “fundamentally unfair.” The judge “did not simply take venire members … at their word,” but followed up individually with a “face-to-face opportunity to gauge” demeanor. Although Skilling claims bias here, at trial he only challenged one of the seated jurors for cause. “Taking account of the full record, rather than incomplete exchanges selectively culled from it,” unconstitutional jury bias or selection is not proved.

Ginsburg: Mail/Wire Fraud and Honest Services (6-3, joined by Roberts, Stevens, Breyer, Alito and Sotomayor): When Congress enacted the “honest services” statute after McNally, it clearly intended to extend mail fraud to “at least bribery and kickback” schemes. In fact, the great bulk of such prosecutions involve bribery and kickbacks (as did McNally). We think there is substantial merit to the argument that extending the honest services concept beyond bribery and kickbacks is unconstitutionally vague, at least without further clear guidance from Congress. (And, footnote 45, Congress would have to take “particular care” if it tried to do this – we think it would be pretty hard.) But we think that Congress would prefer that the statute be upheld and restricted to this “salvageable core” meaning, rather than entirely stricken. The statute should be “construed rather than invalidated” if possible. We have used such a “limiting construction” technique before (see, inter alia, Booker), and our construction today “preserve[s] what Congress certainly intended the statute to cover.” [Ed Note: The Court does not confront the idea that, if Congress intended to extend mail fraud beyond McNally’s restriction to “money or property,” then doesn’t restricting “honest services” to bribery or kickbacks make the “honest services” amendment merely redundant? That is, don’t all bribery and kickback schemes involve depriving someone of money or property?]

We will not go further as the government asks and include “undisclosed self-dealing” schemes within the mail fraud statute. It is too “amorphous” and the Circuit opinions have many “inconsistencies.” [Ed. Note: The Court actually cites, on page 44, an amicus brief filed solely by “Albert W. Altschuler as Amicus Curiae” in Weyhrauch, an unusually specific public acknowledgment of assistance. The Court also cites to a CA2 opinion written by then-Judge Sotomayor in 2007.]

However, although Skilling’s mail fraud convictions, which involved neither bribery or kickbacks, cannot stand, his securities fraud convictions might, and even his single conspiracy count might (although it alleged three separate violations including the now-invalid mail fraud), because such “Yates” errors are subjected to harmless error analysis (Hedgpeth, 2008). So, remanded.

Alito, concurring: In my view, the Sixth Amendment’s guarantee of an “impartial jury” is satisfied “so long as no biased juror is actually seated at trial.” “I share some of Justice Sotomayor’s concerns about … voir dire in this case and the trial judge’s findings” of impartiality. “But those highly fact-specific issues are not within the question presented.” So I don’t join the Court’s opinion on the jury, but I concur in the result.

Scalia dissenting in part (joined by Justices Thomas and, in part, Kennedy): I agree about the jury issues. But I don’t think the Court has the power to “invent” a definition of mail fraud not specified by Congress. The “honest services” statute is impermissibly vague and we should simply strike it. Federal courts do not have the power “to define new federal crimes.” [Ed. note: It is interesting to contrast Justice Scalia’s strong statement of the constitutional void-for-vagueness doctrine here, with the majority opinion’s rejection of a vagueness claim in Humanitarian Law Project just three days ago.] I agree with the majority that what Congress intended in 1987 was to re-capture the courts of appeals’ concept of “honest services” that existed before McNally. But that concept was not limited to bribery and kickbacks, and not one of the many lower court opinions ever used those words. (This is a bit of an overstatement, the majority cites two such cases.) Instead, the courts of appeals embraced a remarkably diverse and “indeterminate” set of ideas, that were “hopelessly undefined.” Out of the “smörgåsbord” [yes, Justice Scalia makes sure to include these vowel symbols] of conflicting lower court decisions, bribery and kickbacks is “a dish the Court has cooked up all on its own.” It is “clearly beyond judicial power” for us to exercise a “paring down” function. Congress can, if it wants to.

Sotomayor dissenting (joined by Stevens and Breyer): [Ed. Note: Justice Sotomayor’s opinion is 40 pages long and consists mostly of disturbing fact-specific examples of media and juror biases against Skilling, largely not repeated here.] The majority “understates the breadth and depth pr community hostility toward Skilling, and overlooks significant deficiencies in the district Court’s jury selection process.” After detailed review, I have “serious doubts” about whether Skilling’s jury “was capable of rendering an impartial decision,” so I would grant relief. I agree with the “honest services” portion of the opinion.

The ties and impact of Enron on the Houston community was extremely huge. The entire U.S. Attorneys office there recused. The expert analysis of media said the hostility and pervasiveness was unprecedented. Jurors that responded to the questionnaire showed this. E.g., “biggest liar on earth;” “I believe they are all guilty.” Jurors did not always tell the truth, e.g., one juror (not seated) who had said on the questionnaire that he could be impartial, said when examined “I would love to claim responsibility for putting these sons of bitches away.” “Formalistic” analysis is inadequate; “the inquiry is necessarily case-specific.” “A jury’s word” on impartiality” is not decisive” in all cases, particularly where immense community prejudice can be shown. I do agree that a change of venue was not constitutionally required (but maybe under Rule 21(a) if not forfeited). The district court’s voir dire was not thorough, it was “cursory” and its questioning was “anemic” at times. Lots of suggestions of bias weren’t followed up on and the judge “accepted declarations of impartiality that were equivocal on their face.” Meanwhile, Enron was a “once-in-a-generation” event. Skilling hired private security guards to protect him. The passage of time actually heightened the hostility. “The extraordinary circumstances of this case” lead me to conclude that Skilling’s “right to a fair trial before an impartial jury” was violated.

FEDERAL RULES (Special Verdict forms and Objections to Jury Instructions)

Black v. United States, No. 08-876, 130 S.Ct. ____ (June 24, 2010), reversing 530 F.3d 596 (7th Cir. 2008).

Holding (9 [6-2-1] – 0): Where a defendant preserves his objections to jury instructions by objecting, he does not “forfeit” the objection by opposing a government-proferred special verdict form that might obviate the jury instruction difficulty, at least not without notice that FRCrP 57(b) requires.

Facts: Black and codefendants were tried for mail fraud, on two theories. One was that they “stole millions” from their company (i.e., deprived of money or property) through deceit, and the other was that their deceit deprived the company of their “honest services” as company executives. After a four-month trial, the jury was instructed on both theories; defendants objected to the “honest services” instruction but were overruled. But to “aid appellate review,” the government then asked the court to employ a special verdict form that would show, if the jury convicted, whether it used the “money or property” or “honest services” theory, or both. The defendants objected to any special verdict form (as opposed to a standard “general verdict” of guilty or not guilty). Instead, the defendants proposed that if the jury convicted, they be asked which theory they had used. The district judge rejected this post-verdict inquiry idea, and the government then dropped its objection to using a general verdict form. The jury convicted defendants of mail fraud. On appeal, the Seventh Circuit ruled that defendants had “forfeited” their objection to the honest services instruction, by opposing the special verdict form that would have clearly indicated whether the jury had relied on that theory or not, and thus could possibly have “mooted” the honest services objection (if the jury had not, in fact, relied on that theory).

Ginsburg (joined by Roberts, Stevens, Breyer, Alito, and Sotomayor. Scalia, joined by Thomas, and Kennedy, concur in part and in the judgment): First, because this case did not involve kickbacks or bribery, the prosecution on a broader theory, and the jury instructions on honest services, were invalid. We also rule that the defendants did not “forfeit” their objections, as a matter of interpretation under the Federal Rules of Criminal Procedure. First, the Rules do not expressly authorize “submission of special questions to the jury.” This “counsels caution,” although “we do not mean to suggest that special verdicts in criminal cases are never appropriate.” Second, Rule 30(d) provides what defendants must do to preserve an objection to jury instructions (state the “specific objection and the grounds”), and they undisputedly did that here. Third, the federal rules do not permit the court of appeals to “devise a forfeiture sanction unmoored to any federal statute or rule,” at least without notice to the defendants, because Rule 57(b) requires notice for any sanction “imposed for noncompliance with any requirement not in federal law or federal rules.” So, just as in Skilling, we remand for consideration of harmless error.

Scalia, concurring in part, with Thomas: I join the Court’s opinion with two exceptions. First, I don’t think we should rely on an Advisory Committee Note, as the majority does, because it is “not authoritative.” Second, the honest services instruction here was wrong because that part of the statute is void, as I said in Skilling, not because their was no bribery or kickbacks.

Kennedy, concurring in part: I joined Justice Scalia in Skilling, and that opinion makes clear my view that “to convict a defendant based on an honest services fraud theory, even one limited to bribes or kickbacks,” would be unconstitutional.

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