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HONEST SERVICES

Weyhrauch v. United States (08-1196)

in

Oral argument: Dec. 8, 2009

Appealed from: United States Court of Appeals for the Ninth Circuit (Aug. 4, 2008)

MAIL-FRAUD STATUTE, HONEST SERVICES, FEDERALISM, DISCLOSURE DUTY

Petitioner, Bruce Weyhrauch ("Weyhrauch"), a member of the Alaska House of Representatives, was charged with honest services mail fraud for intending to devise a scheme to deprive the State of Alaska of its intangible right to his honest services in violation of 18 U.S.C. § 1346. Respondent, the United States of America ("United States"), asserts that Weyhrauch should have disclosed his attempts to procure future employment from VECO, an oil company, before voting for legislation that would benefit the company. Weyhrauch claims that he cannot be convicted of honest services fraud because Alaska only requires the disclosure of actual conflicts of interest, not possible ones. The United States believes a violation of § 1346 does not require a concurrent violation of state law in order to convict Weyhrauch of honest services fraud. The Supreme Court’s decision in this case will determine whether § 1346 mandates the creation of a federal common law extending the federal government’s authority over criminal matters usually handled by the states. The Court’s decision will also settle a circuit split and decide what type of conduct constitutes honest services fraud.

Black v. United States (08–876)

in

Oral argument: Dec. 8, 2009

Appealed from: United States Court of Appeals for the Seventh Circuit (June 25, 2008)

FRAUD, WHITE-COLLAR CRIME, HONEST SERVICES

The United States convicted Petitioners Conrad Black, John Boultbee, and Mark Kipnis of mail and wire fraud under 18 U.S.C. § 1341. The Seventh Circuit affirmed the convictions, rejecting arguments that the trial judge erred in failing to instruct the jury that a violation of 18 U.S.C. § 1346 requires contemplation of economic harm to the party to whom one owes “honest services.” The Seventh Circuit further held that objection to the prosecution’s request for a special verdict constituted waiver of the right to challenge the trial judge’s instruction in light of the fact that a special verdict would have clarified whether the trial judge’s instruction regarding honest services fraud was the basis for the convictions. The Supreme Court’s decision will determine the limits of the honest services provision and the means by which to preserve instructional error.

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