Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

As previously predicted here, we believe that the Supreme Court will declare the honest services statute unconstitutional. Apparently, the U.S. Attorney’s Office in the Northern District of Illinois thinks likewise.

In an apparent effort to head off any problems caused by the loss of the honest services mail fraud counts, the government has returned a Second Superseding Indictment against former Illinois Governor Rod Blagojevich. In a filing yesterday, the U.S. Attorney’s Office in the Northern District of Illinois explained that because the defendants’ conduct violated multiple criminal statutes, additional violations of the law are charged in the Second Superseding Indictment. The filing is in direct response to Blagojevich’s Motion to Dismiss the honest services mail and wire fraud counts,  and is fashioned in such a way that, should the Supreme Court find that the honest services mail and wire fraud statutes are unconstitutional, those charges can easily be dismissed, so as not to effect the trial of the case. The Blagojevich trial is scheduled for June 3.

All criminal practitioners should be filing similar motions to dismiss the honest services counts in any pending indictments.
 

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Last week three important matters before the Supreme Court signaled the demise of honest services mail fraud found at 18 U.S.C. § 1346. That law defines honest-services mail and wire fraud as "a scheme or artifice to deprive another of the intangible right of honest services." Honest services mail fraud was adopted by Congress 21 years ago in an effort to combat political corruption, but it has allowed federal prosecutors to indict and convict folks of any manner of conduct, criminal or not.

As Justice Scalia recently remarked in dissenting from a denial of a cert petition some months ago, "Without some coherent limiting principle to define what 'the intangible right of honest services' is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.''

Last Tuesday, the Supreme Court heard oral argument on two cases that did not explicitly raise the issue of the constitutionality of the honest services mail fraud. Scotusblog has an excellent critique of the arguments in the Conrad Black and the Bruce Weyrauch cases and the oral argument transcripts can be found here and here.

However, as Scotusblog reports, on Friday, attorneys for Jeff Skilling explicitly raised the issue arguing that 1346 is unconstitutionally vague. The Skilling merits brief is here. See p. 38.

A detailed read of the oral arguments last week portends the inevitable falling of this statute that has been an essential weapon in combating public corruption, but that has also been a source of abuse and over-reaching by “headline-grabbing” prosecutors.

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Former Telfair County Georgia Sheriff, Jimmie Williamson, was sentenced late last week in federal court to 3 years in prison following his plea earlier this year to honest services mail fraud. Williamson pled guilty to embezzling fine and bond money paid by criminal defendants, accepting bribes in exchange for reduced charges from criminal defendants and purchasing items for his own personal use with Sheriff’s Department funds.

The Macon Telegraph has the story here.

Williamson is the second Telfair County Sheriff to enter a guilty plea to federal charges in the past 2 decades. In the mid-1990s, former Sheriff, Ronnie Walker, was sentenced to 10 years in federal prison for his role in aiding marijuana growers in his county.

The government was represented by an extremely capable young attorney who came to the Southern District of Georgia from Latham & Watkins, Brian Tanner. The Telegraph reports that Tanner argued that the Sheriff had committed a "monumental breach of trust."

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