561 U. S. ____ (2010)

CONRAD M. BLACK, JOHN A. BOULTBEE, and MARK
S. KIPNIS, PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the seventh circuit

Justice Kennedy , concurring in part and concurring in the judgment.

I join the Court’s opinion except for those parts stating that 18 U. S. C. §1346 “criminalizes only schemes to defraud that involve bribes or kickbacks.” Ante , at 5. For the reasons set forth in Justice Scalia’ s separate opinion in Skilling v. United States , ante , p. ___ (opinion concurring in part and concurring in judgment), §1346 is unconstitutionally vague. To convict a defendant based on an honest-services-fraud theory, even one limited to bribes or kickbacks, would violate his or her rights under the Due Process Clause of the Fifth Amendment .