In Skilling v. United States,1 the U.S. Supreme Court limited the application of the honest services fraud statute to bribery and kickback schemes, ruling that it did not include schemes involving undisclosed self-dealing. Although widely considered to be a defense victory, federal prosecutors have not let the decision slow them down, soliciting help from the legislative branch and doggedly pursuing prosecutions impacted by the decision. The continued press for additional laws in this area despite the Supreme Court’s recent decision is at odds with concerns regarding the continued expansion of federal criminal law and the growth of federalism.
Legislative Efforts
On Sept. 28, 2010, the Senate Judiciary Committee held a hearing on “Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court’s Skilling Decision.” Not surprisingly, Assistant Attorney General Lanny A. Breuer encouraged Congress to pass legislation to enable the government to continue to rely on mail and wire fraud statutes to prosecute corrupt conduct by public officials and corporate executives.2
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