Honest Services Fraud: The Trial Courts’ Turn

Article by Sarah P. Kelly* and Megan E. Jeans**

Previously published in On Remand

Much hay has been made of the Supreme Court's 2010 decision, Skilling v. United States.¹ In its opinion, the Court took the opportunity to try to scale back the definition of honest services fraud, something key members of the Court—notably Justice Scalia—had been eager to do for some time.² The Court explicitly limited the statute to bribes and kickbacks and excluded other forms of honest services deprivation, notably undisclosed self-dealing.

But this was not the first time the Supreme Court had tried to curtail honest services fraud law; it had done so in 1986 in McNally v. United States.³ Shortly after McNally, however, Congress acted quickly to restore the scope of honest services fraud and enacted the current version of 18 U.S.C. § 1346. After Skilling, commentators and legislators alike began to call for Congress to once again undo the Supreme Court's work and restore federal prosecutors' ability to reach a broad range of corrupt conduct.⁴ Yet this time, two years after Skilling, Congress has failed to do anything. In this day and age, expanding the scope of the honest services statute appears not to be a priority.

This Article addresses whether the Supreme Court's decision in Skilling, or even Congress's subsequent failure to act, has any real effect on prosecutors' efforts to fight public corruption. While the Court presumably sought to clarify the law and pare it down to its clear statutory meaning, it now appears that the state of the law is close to where it was in May 2010—somewhat vague. In response, courts, rather than insisting on strict definitions of "bribery" or "kickbacks," have gone out of their way to shoehorn conduct into the new meaning of § 1346. Given the general willingness of trial and appellate courts to find almost any deprivation of honest services sufficient—with the emphasis on whether or not the deprivation was of actual honesty, not property—there appears to be little need to try to rewrite the statute. Courts have filled in where Congress has failed; they have expanded the law or added a good dose of common sense where necessary to ensure that those depriving the public of their honest services, just as the statute requires, face consequences for doing so.

Part I begins by briefly outlining the history of the honest services law up through 2010, when the Supreme Court issued its opinion in Skilling. Part II examines Skilling itself—the majority opinion, the dissent, and where the Court left unresolved questions. Part III analyzes sample district court cases (a few reviewed by the Courts of Appeals) that have dealt with recurring open questions, largely successfully. And finally, Part IV concludes with a few predictions and suggestions for the future, so as to keep the law in this area moving in the same direction—to make sure that public officials are on notice of what constitutes honest services fraud and, at the same time, make sure that the definition is not so narrow that clearly corrupt behavior is beyond the statute's reach.

I. A BRIEF HISTORY

Before 1987, while there was no express law criminalizing the deprivation of "honest services," a body of common law allowed for the mail and wire fraud statutes to be used to prosecute elected officials for corruption or misconduct, or, in other words, for depriving their constituents of their honest services.⁵ In 1987, however, the Supreme Court struck down this body of law in McNally v. United States.⁶ The Court held that, while "[t]he mail fraud statute clearly protects property rights, . . . [it] does not refer to the intangible right of the citizenry to good government."⁷ The Court declined to read such a crime into the plain language of the mail and wire fraud statutes because Congress had not explicitly included the term "honest services." The Court stated: "If Congress desires to go further, it must speak more clearly than it has."⁸

Congress responded by enacting 18 U.S.C. § 1346. The one-sentence statute defined the phrase "scheme or artifice to defraud" to include schemes to deprive others of "the intangible right of honest services."⁹ The definition—and the accompanying underlying crimes of mail and wire fraud— became one of prosecutors' favorite ways of criminalizing a wide variety of public and private conduct including bribery, kickbacks, corporate self-dealing, and the failure to disclose material information.

For over twenty years, the Courts of Appeals unanimously upheld § 1346's ability to reach those who deprived others of the intangible right of honest services.¹⁰ In their opinion, the constitutionality of the new statute was not in question. The Courts of Appeals did, however, differ over what exactly the term "honest services" meant and what, if any, limitations should be placed on the language of the statute.

The legal landscape shifted in 2009 when three Chicago City employees convicted of depriving the city of their honest services asked the Supreme Court to hear their case.¹¹ Although the Court declined to hear the case, Justice Scalia took the opportunity to critique § 1346. In his dissent from the denial of certiorari, he wrote that the statute had been "invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials but also by private employees and corporate fiduciaries."¹² He went on:

Further, Justice Scalia was concerned about the inconsistent applications of the statute by the courts. He noted: "[T]he Courts of Appeals have spent two decades attempting to cabin the breadth of § 1346 through a variety of limiting principles. No consensus has emerged."¹⁴

The following term, the Supreme Court agreed to hear three cases concerning the scope of the honest services fraud statute: Black v. United States,¹⁵ United States v. Weyhrauch,¹⁶ and United States v. Skilling.¹⁷ Echoing Justice Scalia's concerns, Skilling challenged the constitutionality of the statute, arguing that the term "intangible right to honest services" was unconstitutionally vague.¹⁸

II. THE SKILLING DECISION

In 2006, Jeffrey Skilling, the former chief executive officer of Enron Corporation, was convicted of conspiracy to commit honest services fraud; specifically, the government charged Skilling with conspiring to defraud Enron's shareholders by misrepresenting the company's true financial status, thereby overstating the company's stock price. The government argued that Skilling had received a benefit for his conduct— salary, bonuses, and Enron stock. On appeal, Skilling argued that the statute was unconstitutionally vague.

The Supreme Court did not agree with Skilling entirely, but it took the opportunity to restrict the reach of the honest services fraud statute. The Court conceded that there was no uniform definition of the "intangible right" to "honest services" before McNally. However, in an effort to "save" the statute, the Court limited its meaning to the "vast majority" of pre-McNally cases that involved bribes or kickbacks.

The Court reasoned that, because most of the cases before McNally involved bribery or kickbacks—rather than other less-defined types of dishonest conduct such as undisclosed self-dealing— Congress's language should not be construed to apply to any possible corrupt conduct but only to bribes and kickbacks.¹⁹ Such a limitation effectuated Congress's intention at the time: re-criminalization of bribery and kickbacks under the mail and wire fraud statutes. In light of this limitation, the Supreme Court concluded that § 1346 was not unconstitutionally vague. "In sum, our construction of § 1346 'establish[es] a uniform national standard, define[s] honest services with clarity, reach[es] only seriously culpable conduct, and accomplish[es] Congress's goal of 'overruling' McNally.'"²⁰

The Court's decision in Skilling raised almost as many questions as it answered. As Justice Scalia warned in his concurrence, the Court's holding that honest services fraud was limited to its basic pre-McNally definition was "a step out of the frying pan into the fire."²¹ While his main concern was the Court's fabrication of a new definition of honest services fraud, he remained worried about the statute's lingering vagueness. He argued that Skilling did "not solve the most fundamental indeterminacy: the character of the 'fiduciary capacity' to which the bribery and kickback restriction applies."²² Does it apply only to public officials or does it also apply to private individuals who contract with the public? Or does it apply to everyone, including the corporate officer? Pre- McNally case law did not provide an answer. Thus, even with the bribery and kickback limitation the statute does not answer the question, "What is the criterion of guilt?"²³

III. THE LOWER COURTS' REACTION: WORKING AROUND SKILLING

Justice Scalia had some cause for concern—lower courts did have considerable questions left to answer following Skilling. First, what exactly constitutes a bribe? Second, in this context, what does the fiduciary duty requirement entail? In other words, does an individual need to have a fiduciary duty to another to deprive him of honest services? Both questions have been left up to trial courts, and, as discussed below, courts have done their best to ensure that conduct that looks and smells like a deprivation of honest services is criminalized even under the narrowed version of the statute. While Justice Scalia was right to worry that courts would struggle with § 1346's vagueness, there appears to be no basis for any concern over their ability to criminalize truly corrupt conduct.

A. What Counts as a Bribe—Is a Quid Quo Pro Required?

The majority's response to Justice Scalia's concerns about "arbitrary prosecutions" was to refer him to "pre-McNally case law" and "federal statutes proscribing—and defining—similar crimes."²⁴ Specifically, the Court cited three cases and three statutes—by no means a comprehensive anthology of relevant authority.²⁵ While a few courts have interpreted this selection as some form of guidance as to the proper definition of bribery in an honest-services-fraud context, others have simply chosen from the "smorgasbord-offerings of varieties of honest-services fraud" bribery theories in pre-McNally case law to convict a broad range of unethical behavior.²⁶

1. United States v. Ring

United States v. Ring provides a particularly striking example of the reach of honest services fraud charges based on bribery schemes.²⁷ Shortly after Skilling was decided, Ring was prosecuted for engaging in questionable lobbying efforts in concert with Jack Abramoff.²⁸ Examples of Ring's bribery practices ranged from paid vacations to free meals—nothing out of the ordinary for lobbyists at the time.²⁹ Nonetheless, a jury found Ring guilty, and he moved for a judgment of acquittal.³⁰ He defended his behavior on a number of grounds, primarily arguing that the court had defined bribery too liberally and that, in any event, the government did not provide sufficient evidence to satisfy even a liberal definition of bribery.³¹ Yet, the court dismissed each argument in turn by repeatedly broadening the definition of bribery to encompass Ring's behavior.³²

First, Ring objected on the ground that the government had not provided any evidence of an explicit quid pro quo. Extending the reasoning of a pre-Skilling case, McCormick v. United States,³³ Ring argued that charges based on a bribery theory of honest services fraud required such evidence— particularly in cases where the alleged bribery involved political speech.³⁴ Although the court agreed that proving bribery under an honest-services-fraud theory required some type of quid pro quo, it held that this could be implicit.³⁵ Moreover, it noted that Skilling had no impact on the definition of bribery propounded in McCormick and criticized Ring for "conflat[ing] the requirements of McCormick and Skilling."³⁶

Having lost his argument that the government must provide evidence of an explicit agreement, Ring maintained that the government must at least provide some evidence from the other side of the alleged bribery scheme to meet the implicit quid pro quo requirement.³⁷ He pointed to the absence of any evidence that public officials had actually participated in the alleged bribery scheme, or even that Ring's gifts were always received by the intended recipients.³⁸ Using evidence from only one side, Ring argued, does not amount to proving an actual agreement.³⁹

Once again siding with the government, the court held that proof of an implicit quid pro quo need not involve evidence of mutual agreement.⁴⁰ Such an agreement can be inferred using evidence from only one side, showing either that the defendant intended to influence or be influenced.⁴¹

2. Unites States v. Mosberg

In United States v. Mosberg, the U.S. District Court for the District of New Jersey found a way to expand the scope of the honest services statute when faced with a similar wrinkle. Mosberg was a real estate agent accused of bribing the attorney for the Parsippany-Troy Hills City Planning Board.⁴² In the indictment, the government charged several instances of unethical conduct by both parties, performed seemingly independently by one party for the other's benefit.⁴³ For instance, Mosberg was alleged to have helped the attorney's family members "flip" real estate properties—to buy and then quickly sell them—resulting in tens of thousands of dollars of profit.⁴⁴ Similarly, the attorney repeatedly granted Mosberg preferential treatment over his own client, the City Planning Board, while concealing his relationship with Mosberg.⁴⁵ However, the alleged preferential treatment did not even commence until five years after the "originating date" of the conspiracy—too lengthy a time period for any connection to be implied.⁴⁶

Like Ring, Mosberg challenged the indictment charging him with honest services fraud because it did not include any evidence of an actual agreement.⁴⁷ Mosberg argued that the government's link was too tenuous to constitute actual bribery, and he argued persuasively that the government made no allegation of a quid pro quo bribery scheme.⁴⁸ The argument, however, fell on deaf ears. The Mosberg court held that an indictment need not explicitly allege an intent to influence;⁴⁹ it was sufficient that the indictment alleged an exchange with a public official, from which the intent to influence could be implied.⁵⁰ The court stretched as much as it needed to ensure that dishonest conduct—even in a form that wasn't easily shown to be a quid pro quo bribe—was punished.

B. What Counts as a Bribe—Will a Stream of Benefits Suffice?

Just as the standard of proof for the pro has been relaxed, courts have permitted a mere "stream of benefits" to suffice for the quid and the quo.⁵¹ Under the stream-of-benefits theory, the government need not show that any given benefit was proffered in exchange for any given act.⁵² This theory has been utilized with some frequency both before and after Skilling to criminalize bribery-esque behavior when the government cannot draw a line between each individual favor and each benefit.

For instance, in all three cases cited in Skilling for the definition of bribery—Whitfield, Ganim, and Kemp—the jury instructions on bribery were upheld even though they did not include the actual phrase "quid pro quo" or require the jury to associate a particular quid with a particular quo.⁵³ In the words of the Fifth Circuit in Whitfield, it was enough that the instructions conveyed the "essential idea of give-and-take."⁵⁴ After Skilling, the Ring court relied on two of the three cases, Ganim and Kemp, in upholding the stream of benefits theory.⁵⁵ In so doing, it mentioned that Skilling made reference to these cases, but merely as a side note.⁵⁶ Of greater relevance to the court was that the theory had already been validated prior to the Skilling case.⁵⁷

The Ring court, however, may have stretched the theory even farther than Whitfield, Ganim, and Kemp by requiring the jury to consider all of Ring's gifts as a whole and in conjunction with other evidence tending to prove his guilt.⁵⁸ The gifts described in Whitfield, Ganim, and Kemp were significantly more "rare and costly" than any of Ring's favors—mostly "commonplace lobbying tools" such as gifts and free meals.⁵⁹ Both Whitfield and Ganim involved over $100,000 of one-time payments, and Kemp involved multiple payments for several thousand dollars.⁶⁰ In contrast, Ring argued, none of his gifts, "standing alone," could even rationally be considered a bribe.⁶¹ The court dismissed the idea that the value of Ring's gifts was of any import and considered only their cumulative effect.⁶² Extending this line of reasoning to its logical end, an individual could be held guilty of bribery under an honest-services-fraud theory with a few too many free cups of coffee.

Similarly, other circuits have continued to employ the "stream of benefits" theory as it was used before Skilling—to bring unethical behavior under the umbrella of honest services fraud. In Ryan, for example, the defendant was alleged to have taken "official actions favorable to campaign contributors" while serving as Governor of Illinois.⁶³ The court acknowledged that Ryan's behavior did not fall into a "plain-vanilla bribery fact pattern," but nonetheless denied his motion to vacate his sentence.⁶⁴

Thus, even if some pre-Skilling cases required that the government prove the spirit of a quid pro quo, the trend appears to be for courts to work around any such limitation after Skilling.⁶⁵ After Ring and Mosberg, the government need not provide evidence of an explicit agreement because an agreement can be inferred from an exchange of favors or from evidence of an intent to influence. And after Ryan, the government need not prove that one particular favor corresponds to another.

So what evidence is necessary to support a charge of honest services fraud? At least in some jurisdictions today, the government need only show that the defendant provided a series of gifts or favors to a public official who later took some official action favorable to the defendant.⁶⁶ At most, the government must submit evidence of an intent to influence or be influenced, but evidence of both is not necessary.

C. Is a Fiduciary Duty Required?

The ambiguity surrounding the definition of bribery pales in comparison to the absence of any consensus regarding Justice Scalia's principal concern with what remained of § 1346 after Skilling—the nebulous fiduciary duty requirement.⁶⁷ While Justice Scalia worried that courts would wrestle with the nature of the fiduciary duty that was "central" to a § 1346 violation,⁶⁸ it appears that some courts have worked around this issue by expanding the definition of the fiduciary duty to the point that it is hardly a requirement at all.⁶⁹

Indeed, a three-judge panel of the Ninth Circuit Court of Appeals went so far as to craft an entirely new test to determine whether corrupt behavior violates § 1346. In United States v. Milovanovic, the court held that the "critical factor" in an honest services fraud case is "the type of service at issue, not the relationship between the parties."⁷⁰ According to that court, § 1346 is aimed at the deprivation of honest services, not the dishonest deprivation of services.⁷¹ Otherwise, any employee—such as the worker taking the afternoon off to see the baseball game—could be charged with honest services fraud merely for lying to his employer.⁷² Limiting the scope of § 1346 to deprivation of services, "the value of which depends on their being performed honestly," eliminates the need for a fiduciary duty requirement while reigning in prosecutorial discretion.⁷³

Ultimately, that decision was overruled by an en banc panel and the fiduciary duty requirement was reinstated.⁷⁴ The Ninth Circuit, however, adhered to the concept that the scope of § 1346 is limited by factors such as the nature of the service being denied.⁷⁵ Moreover, the remaining fiduciary duty requirement was given little meaning. The court found that that it was so broad as to encompass any "trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance it would ordinarily exercise."⁷⁶

Similarly, the District Court for the District of Columbia held that the duty is not limited by the facts of the cases cited in Skilling, but can extend even to "variable" duties that "depend upon the circumstances."⁷⁷ That case, United States v. Scanlon, also involved Jack Abramoff, but this time the defendant was charged with secretly paying Abramoff for jobs he acquired from Abramoff's clients.⁷⁸ The defendant, Michael Scanlon, objected to the government's theory that Abramoff owed his clients a fiduciary duty merely because they had hired him more than once.⁷⁹ By citing specific cases to define the core of pre-McNally case law, Scanlon argued, the Skilling court only meant to require a violation of traditional fiduciary duties such as attorney-client, doctor-patient, or stockbroker-customer.⁸⁰ Moreover, he argued, permitting § 1346 charges based on "ill-defined," "elastic," or "innovative" fiduciary duty violations creates fair notice issues.⁸¹

The court rejected both arguments, interpreting Skilling to permit § 1346 charges based on any type of violation of any type of fiduciary duty.⁸² Accordingly, the court denied Scanlon's motion to modify his plea agreement on the basis that he was involved in a scheme with someone who owed a fiduciary duty to his clients.⁸³ To support the existence of a fiduciary duty, the court looked to ethical rules and case law regarding attorneys—even though Abramoff was not an attorney, but merely worked at a law firm. It was enough that Abramoff's clients relied on him as a "professional advisor."⁸⁴ Thus, at least in the District of Columbia,⁸⁵ acting in the murky capacity of "professional advisor" can be enough to create a fiduciary relationship for honest services fraud purposes.

Finally, at least one court has upheld an honest services fraud conviction without explicitly deciding whether a fiduciary duty is even required.⁸⁶ That case, United States v. Bahel, involved a United Nations representative who allegedly exchanged contracts with the UN for financial benefits.⁸⁷ Bahel objected to his conviction and argued that violation of some duty based in state law is necessary to prove honest services fraud.⁸⁸

The court rejected Bahel's argument as contrary to precedent in the Second Circuit and summarily concluded that Bahel's behavior fell "firmly within the ambit of the type of conduct that violates the right to honest services as set forth in relevant precedent."⁸⁹ At no point did the court reference the Skilling case for the source, the nature, or even the existence of a fiduciary duty requirement. Once again, it appears that Skilling had little real world limiting effect on the outcome of this case.

CONCLUSION

The Supreme Court's decision in Skilling undoubtedly left some unresolved issues. Moreover, given the vagueness surrounding the Skilling decision, Congress could have stepped in to at least attempt to clarify the state of the law.

But if the past is prologue, perhaps Skilling is the best outcome for all concerned. The last time the Supreme Court considered honest services fraud, it struck down the law in its entirety, and Congress tried to codify the violation. But more than twenty years later, the Court again came close to striking down Congress's attempt to clarify the law. Perhaps the Supreme Court avoided another unclear congressional statute and another round of judicial interpretation to be revisited by the Court in 2030.

In fact, perhaps this is an area of law where trial courts are particularly well suited to interpret and apply the law—an area where the legislature and even the Supreme Court have failed. District courts, as well as numerous courts of appeals, have enough guidance to fairly interpret and administer the law in this area. While the Skilling Court may have had a questionable basis to exclude all conduct other than bribery and kickbacks from the definition of the "intangible right of honest services," there appears to be a workable framework for trial courts going forward. As is clear from the case law in the last two years, the lower courts have done their best to ensure that anyone committing a deprivation of honest services—acting dishonestly when the public or their particular constituency depends on the person's honesty—can be prosecuted under 18 U.S.C. § 1346. This outcome is the best we can hope for. It gives defendants ample notice, and for dealing with the murky problem of public corruption, it appears to work pretty well. Trial judges have the wherewithal and the ability to shape the honest-services law, post-Skilling, to ensure that those truly depriving others of "the intangible right of honest services," face the consequences.

Footnotes

* University of Michigan Law School, J.D. Sarah P. Kelly is a partner in the Litigation Department and a member of the Government Investigations and White Collar Defense Group at Nutter McClennen & Fish, LLP. She has represented both corporations and individuals in a wide variety of white-collar matters, including cases involving securities fraud, environmental crimes, and the False Claims Act. She has also handled numerous complex civil cases in both federal and state courts.

** Harvard Law School, J.D. Megan Jeans is an associate in the Litigation Department at Nutter McClennen & Fish, LLP.

1 130 S. Ct. 2896 (2010). See, e.g., Charion L. Vaughn, Note, Power Corrupts: Honest Services Fraud and Fiduciary Duties, 50 WASHBURN L.J. 713, 713 (2011) ("Skilling . . . immensely affected white-collar crime cases"); Nicholas J. Wagoner, Comment, Honest-Services Fraud: The Supreme Court Defuses the Government's Weapon of Mass Discretion in Skilling v. United States, 51 S. TEX. L. REV. 1087, 1091-92 (2010).

2 See Sorich v. United States, 555 U.S. 1204, 1206-07, (2009) (Scalia, J., dissenting).

3 483 U.S. 350 (1987).

4 See, e.g., Honest Services Restoration Act, S. 3854, 111th Cong. (2010); Honest Services Restoration Act, H.R. 6391, 111th Cong. (2010); Elizabeth R. Sheyn, Criminalizing the Denial of Honest Services After Skilling, 2011 WIS. L. REV. 27, 52-65 (2011); Wagoner, supra note 1, at 1131- 42.

5 In Skilling, the Supreme Court credited the Fifth Circuit Court of Appeals with the first adoption of the intangible-rights theory in Shushan v. United States, 117 F.2d 110 (1941). See Skilling, 130 S. Ct. at 2926.

6 McNally, 83 U.S. at 355-56.

7 Id. at 356.

8 Id. at 360.

9 18 U.S.C. § 1346 (2006).

10 See United States v. Frost, 125 F.3d 346, 364 (6th Cir. 1997) ("[E]very court to address the effect of §1346 has held that it has overruled the holding in McNally" and "reinstate[d] the doctrine of intangible rights to honest services.").

11 See United States v. Sorich, 523 F.3d 702, 705 (7th Cir. 2008), cert. denied, 555 U.S. 1204 (2009).

12 Sorich, 555 U.S. at 1205.

13 Id. at 1205-06.

14 Id. at 1206.

15 130 S. Ct. 2963, 2970 (2010).

16 130 S. Ct. 2971, 2971 (2010).

17 130 S. Ct. 2896, 2907 (2010).

18 See id. at 2901.

19 "[T]o preserve what Congress certainly intended the statute to cover, we pare that body of precedent down to its core: In the main, the pre-McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived." Id. at 2928.

20 Id. at 2933.

21 Id. at 2938 (Scalia, J., concurring in part and concurring in the judgment).

22 Id.

23 Skilling, 130 S. Ct. at 2939 (Scalia, J., concurring in part and concurring in the judgment).

24 Id. at 2933-34 (majority opinion).

25 Id. (citing 18 U.S.C. §§ 201(b), 666(a)(2) (2006); 41 U.S.C. § 52(2) (2006) (current version at 41 U.S.C. § 8701(2) (2011)); United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009); United States v. Ganim, 510 F.3d 134 (2d Cir. 2007); United States v. Kemp, 500 F.3d 257 (3d Cir. 2007)).

26 Skilling, 130 S. Ct. at 2939 (Scalia, J., concurring in part and concurring in the judgment).

27 See United States v. Ring, 768 F. Supp. 2d 302, 302 (D.D.C. 2011).

28 Id. at 304, 307. Abramoff had also found his way into federal court for fraudulent behavior completely unrelated to his lobbying activities. See Michael Forsythe & Jonathan Salant, Abramoff Pleads Guilty, Will Help in Corruption Probe, BLOOMBERG (Jan. 3, 2006), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aDq6Gy_i0shA&refer=top_world_news.

29 See Ring, 768 F. Supp. 2d at 306-07; Timothy O'Toole, The Honest-Services Surplus: Why There's No Need (or Place) for a Federal Law Prohibiting "Criminal-esque" Conduct in the Nature of Bribes and Kickbacks, 63 VAND. L. REV. EN BANC 49, 52 (2010) (arguing that Ring's behavior was common for the time and the industry and arguing that no reasonable lobbyist would have considered his behavior to be criminal).

30 See Ring, 768 F. Supp. 2d at 302, 304, and 306.

31 Id. at 304, 306.

32 See id. at 304-09.

33 See 500 U.S. 257, 271 (1991) (holding that the protected status of campaign contributions merited a heightened standard of proof for bribery).

34 Ring, 768 F. Supp. 2d at 304-05.

35 See id. at 306.

36 See id.

37 See id. at 309.

38 See id. at 307.

39 See Ring, 768 F. Supp. 2d at 308.

40 See id. at 309.

41 Id.

42 United States v. Mosberg, No. 08-0678(FLW), 2011 U.S. Dist. LEXIS 129844, at *2-3 (D. N.J. Nov. 9, 2011).

43 See id. at *4-7.

44 Id. at *6-7.

45 See id. at *4-6.

46 Id. at *34-35.

47 Id. at *26-27.

48 See Mosberg, 2011 U.S. Dist. LEXIS 129844, at *27-28, *34-35.

49 Id. at *29-30.

50 Id.

51 See, e.g., United States v. Ring, 768 F. Supp. 2d 302, 309 (D.D.C. 2011); Ryan v. United States, 759 F. Supp. 2d 975, 984-85 (N.D. Ill. 2010).

52 Ryan, 759 F. Supp. 2d at 984-85.

53 See United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009); United States v. Ganim, 510 F.3d 134, 144 (2d Cir. 2007); United States v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007).

54 Whitfield, 590 F.3d at 353 (citing United States v. Kincaid-Chauncy, 556 F.3d 923, 943 (9th Cir. 2009)).

55 Ring, 768 F. Supp. 2d at 309.

56 See id.

57 See id.

58 See id. at 306, 309.

59 Id. at 306-07.

60 See United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009); United States v. Ganim, 510 F.3d 134, 138 (2d Cir. 2007); United States v. Kemp, 500 F.3d 257, 265 (3d Cir. 2007).

61 Ring, 768 F. Supp. 2d at 307.

62 Id.

63 See Ryan v. United States, 759 F. Supp. 2d 975, 977-78 (N.D. Ill. 2010).

64 Id. at 981.

65 Of course, courts have required a quid pro quo like exchange in instances where the exchange is reasonably clear. For example, in the trial of the former Speaker of the Massachusetts House of Representatives, Sal DiMasi, the trial court instructed the jury: "DiMasi performed an official act in exchange for a payment to him . . . the public would have been deprived of its right to his honest services." See, e.g., Kyle Cheney, DiMasi Corruption Case Goes to the Jury, PATRIOT LEDGER (June 13, 2011), http://www.patriotledger.com/homepage/breaking/x1639215731/DiMasi-corruption-case-goes-to-the-jury.

66 For Texas defendants, Skilling actually broadened the reach of honest services fraud by expanding the definition of bribery. See, e.g., United States v. Jones, 2011 WL 6980831 *1, *5 (W.D. Tex. Aug. 15, 2011). This anomaly was raised in United States v. Jones, where the defendants were charged with depriving the people of El Paso of their right to honest services via an alleged bribery scheme. Id. at *1. Both defendants requested a new trial because the jury instructions were based on federal bribery law instead of Texas bribery law. Id. The court upheld the decision to use federal bribery law after Skilling, which established "'a uniform national standard' for the application of honest services fraud." Id. at *5. To establish such a standard, the court reasoned, courts would have to apply federal bribery laws, which it conceded were broader than Texas law. Id. The court interpreted federal bribery laws not to require proof of an express quid pro quo in campaign contribution cases and not to require that the contribution be a but-for cause of the official action. Id. Both requirements would have to be met under Texas law. Id.

67 See Skilling v. United States, 130 S. Ct. 2896, 2936 (2010) (Scalia, J., concurring in part and concurring in the judgment).

68 Id.

69 See, e.g., United States v. Urciuoli, 613 F.3d 11, 17 (1st Cir. 2010); United States v. McDonnell, No. 10-1123, 2011 U.S. Dist. LEXIS 66148, at *9 (C.D. Cal. June 20, 2011); United States v. Scanlon, 753 F. Supp. 2d 23, 25 (D.D.C. 2010).

70 See U.S. v. Milovanovic, 627 F.3d 405, 412 (9th Cir. 2010) (quoting United States v. Rybicki, 354 F.3d 124, 155 (2d Cir. 2003) (Raggi, J., concurring)).

71 Id.

72 Id.

73 See id.

74 See U.S. v. Milovanovic, No. 08–30381, 2012 WL 1398647 (9th Cir. Apr. 24, 2012).

75 See id. at *9.

76 Id. at *7.

77 United States v. Scanlon, 753 F. Supp. 2d 23, 26 (D. D. C. 2010).

78 Id. at 24.

79 See id.

80 See id. at 25.

81 Id. at 27.

82 Id. at 26-27.

83 Scanlon, 753 F. Supp. 2d. at 28.

84 Id. at 28.

85 In another case addressing the requirements of a fiduciary duty, the District Court for the Northern District of Ohio held that an ethical code violation was insufficient to form the basis for an honest services fraud conviction. In United States v. Terry, No. 1:10CR390, 2011 U.S. Dist. LEXIS 57288, at *19 (N.D. Ohio May 26, 2011), the government brought § 1346 charges against Steven Terry, common pleas judge, for receiving bribes in exchange for favorable rulings. In the indictment, the government pointed only to violations of the Ohio Code of Judicial Conduct, which the court decided were insufficient to form the basis for a § 1346 conviction. Instead, the court held § 1346 charges must be premised on the violation of a duty imposed under state law. Yet rather than dismiss the charges for not having a sufficient basis, the court supplied the necessary basis for the § 1346 charges. It determined that Terry had violated certain state bribery laws and held that this violation was sufficient to support an honest services fraud case. Effectively, the court held that a violation of state law was required but that the government need not actually allege such a violation.

86 See United States v. Bahel, 662 F.3d 610, 633 (2d Cir. 2011).

87 Id. at 617.

88 See id. at 632-33.

89 Id. at 633.

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