Editor’s Note: The NYU Law Program on Corporate Compliance and Enforcement (PCCE) is following the recent U.S. Supreme Court decisions in Percoco v. United States and Ciminelli v. United States, which narrow the scope of honest services fraud and eliminate the so-called “Right to Control” theory in federal fraud cases, respectively. Together, these two cases continue a trend of circumscribing the federal government’s ability to prosecute domestic public corruption in the United States.
by Thomas H. Dupree Jr., Bradley J. Hamburger, Allyson N. Ho, Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon
Top row from left to right: Thomas H. Dupree Jr., Bradley J. Hamburger, and Allyson N. Ho. Bottom row from left to right: Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon. (Photos courtesy of Gibson, Dunn & Crutcher LLP)
“‘[T]he intangible right of honest services’ codified in § 1346 plainly does not extend a duty to the public to all private persons.” – Justice Alito, writing for the Court
The Supreme Court overturned a wire fraud conviction based on an honest-services theory. The Court reasoned that while such a theory can potentially cover private persons, it does not extend to all private persons. The jury instructions given in this case were too vague because they failed to define the intangible right to honest services with sufficient definiteness.