The current U.S. Supreme Court docket includes a number of important cases that should be monitored closely by white collar practitioners. The Court is exploring the boundaries of the federal honest services law for the first time; re-examining the Confrontation Clause and its application to evidence sought from non-testifying forensic experts; and reviewing the ineffective assistance of counsel standard under the Sixth Amendment in the context of what attorneys must advise their clients about the collateral consequences of a guilty plea.
Trio of Honest Services Cases
The Court has granted certiorari in three separate criminal cases involving the federal “honest services” fraud statue set forth in 18 U.S.C. Section 1346. That provision was inserted as an amendment to the chapter criminalizing mail and wire fraud in response to a Supreme Court decision, McNally v. United States,1 which held that such breaches of duty were not encompassed by the traditional mail and wire fraud statutes. Section 1346 states that a “scheme or artifice to defraud” includes one that deprives another of the “intangible right of honest services.” Since its inception in 1988, the statute has become a sort of “catch-all” crime for federal prosecutors. In an amicus brief filed with the Court, the National Association of Criminal Defense Lawyers observed that “[f]ederal prosecutors use the honest services statute thousands of times each year to criminalize a breathtaking range of private and official conduct.”2
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