The U.S. Supreme Court's decision in McDonnell v. United States, 136 S. Ct. 2355 (2016) has had a profound impact on public corruption cases throughout the country, particularly in the Second Circuit, where several high profile convictions have been vacated for failing to comply with McDonnell's new requirements on how juries must be charged on various elements of public corruption crimes.

In United States v. Skelos, — Fed. App'x —, 2017 WL 4250021 (2d Cir. Sept. 26, 2017), its latest decision interpreting McDonnell, the Second Circuit made it clear that if official acts form the basis of public corruption charges, then they must meet the McDonnell standard no matter what corruption statute is charged. The decision helped explain an earlier decision by a different panel in United States v. Boyland, which had declined to apply the McDonnell standard to federal program bribery charges brought under 18 U.S.C. §666. 862 F.3d 279 (2d. Cir. 2017). The Skelos panel unequivocally limited Boyland to cases that are not charged in terms of official acts, thereby rejecting any formalistic application of McDonnell that might turn entirely on the statute involved. By focusing on the charged conduct rather than the statute charged, Skelos helpfully resolved confusion over when corruption cases touch on the constitutional concerns that trigger the heightened McDonnell standard.

Background

The law governing public corruption is notoriously muddled. The government often prosecutes individuals under multiple statutes for the same underlying conduct. The key statutes typically invoked include 18 U.S.C. §§201 (bribery of federal officials); 1951 (the Hobbs Act, which criminalizes “extortion under color of official right”); 1346 (honest services fraud); and 666 (federal program bribery, which does not include an “official act” as an element).

The law governing these statutes has largely converged, with courts defining Hobbs Act bribery and honest services fraud by reference to the federal bribery statute and treating their precedents as interchangeable. See, e.g., McDonnell, 136 S. Ct. at 2365 (“The parties agreed that they would define honest services fraud with reference to the federal bribery statute, 18 U.S.C. §201.”).