The federal crime of “honest services fraud” has been the subject of much debate and litigation, with defendants claiming that the statute does not define the offense with enough specificity to pass constitutional muster. The U.S. Supreme Court agreed in 2010, limiting the use of the statute to specific situations involving bribes and kickbacks. This still left questions about the mental state required by the statute. A recent decision in U.S. v. Ring, No. 11-3100, slip. op. (D.C. Cir., Jan. 25, 2013) holds that the prosecution must prove that the defendant intended to influence an official act through a bribe or kickback, but does not need to prove that a public official accepted the bribe or kickback.
“Honest services fraud” appears in the U.S. Code as an addition to the definition of a “scheme or artifice to defraud,” stated as “depriv[ing] another of the intangible right of honest services.” 18 U.S.C. § 1346. The defendant, Kevin Ring, worked as a lobbyist in Washington, DC for Jack Abramoff, who was himself convicted of various fraud-related offenses in 2006. The federal investigation into Abramoff’s activities, which involved allegations of bribes to public officials, eventually ensnared Ring and other members of Abramoff’s lobbying team. A federal jury convicted Ring of three counts of honest services fraud, one count of paying an illegal gratuity, and one count of conspiracy. Ring’s trial was postponed to await the Supreme Court’s ruling in a case reviewing the constitutionality of the honest services fraud statute.
The Supreme Court found that the definition of honest services fraud in § 1346 would be unconstitutionally vague if not limited to certain specific acts. Skilling v. U.S., 130 S. Ct. 2896, 2931 (2010). Congress, the court held, intended the statute to apply to cases of bribes and kickbacks to public officials. The definition applied by the Ring court, therefore, covered gifts “given with an intent to influence an official act by way of a corrupt exchange‒i.e. a quid pro quo.” Ring, slip. op. at 4 (internal quotations omitted).
Ring appealed his convictions, including a challenge to the trial court’s jury instructions regarding honest services fraud. He argued that the instructions should have clearly stated that the statute required proof of an “explicit quid pro quo,” the agreement of the public official, and an offer of a corrupt agreement. Id. at 7. The D.C. Circuit Court of Appeals affirmed the conviction, concluding that the trial court properly instructed the jury. It found that the federal bribery statute, which governs the honest services statute, does not require a public official’s agreement to a bribe or kickback, nor does it require that the offer be explicit. The statute, rather, requires that the defendant intend to make an improper bribe or kickback, and intend for the public official to figure out the expected quid pro quo. Id. at 12. The public official does not need to agree to the bribe or kickback for the statute to apply.
Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.
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