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The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much guidance regarding what objective factors one should look to in evaluating the applicability of these two concerns in a given context. Rather, the Court tends simply to reach a conclusion and explain that one or both of these reasons back up its judgment.

This article demonstrates that, under any standard, § 1346 fails both tests in the private cases. Fair notice concerns are certainly present when one recognizes that anyone could be subjected to indictment and the humiliation and stresses of a public trial, and begin serving jail time upon conviction, only to have some court of appeals decide that what she did was not, in law, a crime because of a new judicially-imposed limitation. In the Skilling v. United States argument, the Chief Justice seemed very disturbed by the notion that effective notice could be provided only by lawyerly parsing of the vast—and conflicting—caselaw underlying honest services; he asserted that this common law evolution in the meaning of the term “doesn’t sound like fair notice of what’s criminal.” More importantly, these cases demonstrate the terrifying power that such statutes give prosecutors. “Where federal prosecutors can make an ‘honest services’ case against anyone under existing ‘standards’ ”—and the author believes they can—“a vast potential for arbitrary, discriminatory, and unfair prosecutorial choices inevitably follows."

Publication Citation

63 Vand. L. Rev. (En Banc) 23-48 (2010)