Many public corruption investigations turn into federal criminal cases, here in Atlanta and around the country. Our firm is involved in several of these matters right now. Most of these “white collar” cases result in our clients being charged with some variety of fraud. The feds almost always resort either to the mail or wire fraud statutes. Each of these laws requires a “scheme or artifice to defraud” another out of money or property. A 1988 law says that these statutes include schemes to defraud another out of the “intangible right of honest services.” A 2010 case from the United States Supreme Court restricted the “honest services” version to cases involving bribes and kickbacks, and held that these statutes cannot be used to prosecute a person merely because the Defendant violated some fiduciary duty to a governmental agency or other entity or otherwise engaged in a conflict of interest. I wrote a recent post about how the local federal court of appeals issued a recent decision upholding the conviction of a man in Jacksonville, Florida. That case was an example of how the feds try to get around the recent restrictions on the honest services theory.
The feds recently made a splash in New York, arresting a politician who allegedly was trying to buy his way into the Republican race for Mayor. This is but the latest in a string of high-profile cases in that city involving allegations of bribery, payoffs and the like. A recent article I came across notes that despite the restrictions on the honest services theory, federal prosecutors continue to use this species of fraud when going after politicians. The article quoted a former high ranking federal prosecutor as saying that the restrictions on honest services actually helped the government when making such cases.”I thought the court did us – prosecutors – a favor, because I never thought juries liked conflict-of-interest cases. … Juries want to see bribes or kickbacks” because conflicts of interest “seem more like ethical violations than criminal.”
I thought this article was worth noting for a couple of reasons. First, it is further evidence that federal public corruption cases continue, even after the restrictions on the honest services theory. More importantly, the quote from the article explains something I have mentioned previously, namely, that decisions which seem on the surface to hurt law enforcement actually help prosecutors and policemen in the long run. The famous Miranda warnings are but one example, for once the warnings are given, there is no doubt that the Defendant’s statements will be admissible. Many of these rulings at first were criticized by law enforcement, but over the years, many policemen and women have told me they end up doing a better job when complying with these restrictions. And, we all have the added benefit of protecting individual liberties!