White Collar and Government

Investigations Attorneys



Uncertainty has proven to be a viable defense to a charge of honest services fraud mail or wire fraud. The argument is that there are no clear guidelines to enable a citizen to conform his conduct to the laws. Since the honest services statute outlaws a “scheme to defraud” without defining what constitutes such a scheme, it is certainly less than clear who can be prosecuted and for what. For example, can a corporate officer be prosecuted under the statute for inflating the stock price of his company artificially in furtherance of a goal of the Board of Directors? Under the Skilling interpretation, the answer is no; however, the narrow reading that anchored Skilling is just an example of how little guidance the statute gives to courts to aid in its interpretation. Characterized by the in-flux nature of case law interpreting the statute, the uncertainty in this area raises due process problems of vagueness and overbreadth. It is argued that the statute is vague since it doesn’t define the prohibited conduct, and that it is overbroad since all sorts of conduct that was not contemplated by Congress falls within its purview. While successful arguments have been made in this vein to escape conviction in individual cases, the statute has not been struck down as unconstitutional and remains a viable option for prosecutors.