Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”
If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.
Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.
Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)
“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.
What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.
But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.
This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”)
Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.
That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims.
It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.
To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud.
The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.
In another sense, though, the nonpartisan nature holds promise. Recognition of this problem has brought together seemingly disparate groups to collectively seek change. Adam Liptak, Supreme Court reporter for The New York Times, picked up on this in his November 23 column, “Right and Left Join Forces on Criminal Justice.”
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
Liptak noted, later in the column, that an official from the conservative Heritage Foundation offered him a copy of Three Felonies a Day. (In that column, Liptak referred to me as a “left-wing civil liberties lawyer,” and that was somewhat accurate, although I see myself as a liberal with strong libertarian leanings. My co-founding The Foundation for Individual Rights in Education (FIRE) demonstrates, for example, my near-absolutist support for free speech regardless of politics or point-of-view.)
The “honest services” hearings and the emerging consensus on reforming these criminal justice issues were also highlighted by Tony Mauro of the National Law Journal. In his December 7th column, Mauro pointed out that former Attorney General Edwin Meese III—whom I criticized vehemently when he headed the Reagan Justice Department—welcomed me at a recent speaking event. We now see eye-to-eye on “overcriminalization” of the law, which covers both the expanded reach of federal criminal law and the vagueness of the statutes.
Over the coming week, I will explore the extent of the threat to liberty represented by vague federal laws and the reasons behind this nonpartisan unification against them.
Cornellian says:
Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.
That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics.
I agree with the post overall, but I’m not sure the 96% guilty / no-contest plea percentage is that much different that what one would find in state courts.
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December 14, 2009, 10:32 amDave N. says:
I second Cornellian — the guilty plea rate in state courts is just as high. That said, as one of the more conservative (though libertarian leaning) commentors on this site, I want to say “welcome.”
As a state prosecutor, I find the over-federalization of criminal law to be deeply disturbing. My particular concern centers on federal prosecutions for crimes that have no real federal nexus (e.g., state police drug arrests prosecuted in federal court) but I also share the concern about vaguely worded statutes used bully individuals into submission.
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December 14, 2009, 11:04 ampireader says:
Mr Silverglate –
I’m as skeptical as the next guy about DoJ. But to convince me there’s a problem, you’ll have to cite actual cases of people prosecuted and imprisoned for innocuous conduct. (They should be people who actually committed no egregious acts, not just people allowed to plead to the innocuous as part of a bargain to dismiss more-substantive charges.)
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December 14, 2009, 11:08 amjosh says:
Mr. Silvergate
Al Alschuler was my crim pro professor at U of C Law School. He’s at Northwestern now. He has been railing against the “honest services” fraud statute for years. Have you ever read any of his work?
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December 14, 2009, 11:13 ampete says:
Theoretically if our justice system is working correctly we should also be getting lots of guilty pleas. If prosecutors are only bringing to trial the cases that have overwhelming evidence of guilt one would suspect a very large number of guilty pleas, especially if the alternative was a near certain jury conviction with a longer sentence.
I also second the suggestion to at least point to a few actual cases of people prosecuted for innocuos conduct. I know little about this area compared to the actual lawyers who post here, so examples would be welcome.
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December 14, 2009, 11:16 amDeregulator says:
I have a problem with honest-services law being used as a cudgel against private parties, but not so much when deployed against government officials. Over the past decade, three high-ranking government officials in North Carolina (including a U.S. congressman) were sent to prison in federal prosecutions using honest-services violations, in part, to secure convictions.
http://blogs.newsobserver.com/iteam/honest-services-up-for-review
The former governor, Mike Easley, is currently being investigated by a federal grand jury for a host of violations of campaign finance laws, and of accepting free flights and cars from campaign contributors with business before state government.
In all these instances, state law enforcement officials showed no interest in pursuing corruption charges.
There may be a need to tighten the honest-services laws so that defendants aren’t railroaded. But when high government officials are involved in massive corruption schemes and state prosecutors won’t act, shouldn’t the feds step in, even if they need a rather wide berth to do so?
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December 14, 2009, 11:17 amJay says:
I’m with pireader and Dave N. There are philosophical reasons to object to the over-federalization of criminal law, but I spent two years clerking for federal judges and do not think I ever saw a case (and certainly not a white collar case) that made me think “why, here is someone convicted of something I do three times a day. Outrageous!”
Also, with respect to the honest services statute, it may well have vagueness issues, but it doesn’t strike me as a very good example of a recent trend toward overcriminalization. As I understand it, the statute was enacted to return the state of the law to where it was prior to a Supreme Court case (McNally?) deciding that the ordinary mail fraud statute shouldn’t be interpreted to include honest services fraud. So the honest services offense has actually been a crime for decades, with a brief interruption between McNally and the passage of the amended statute.
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December 14, 2009, 11:21 amIcePilot says:
A question regarding the runaway federal felony train — has anyone ever argued that a felony ought not be, based on simple inflation? In 1800, property damage of $250 (as the demarcation between felony and misdemeanor) would require over $3000 worth of damage in 2008.
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December 14, 2009, 11:32 amDavid Nieporent says:
One infamous instance is the David Henson McNab case, where a Honduran citizen was convicted in U.S. court of violating U.S. law for violating a non-existent Honduran law. He was sentenced to 8 years in U.S. prison and fined six figures, for something which — if it had been in violation of Honduran law — would have garnered him a small fine.
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December 14, 2009, 11:36 amShelbyC says:
Well, how ’bout the Lori Drew case? I give a false name on the internet at least three times a day (neither the name nor the email I provide with this post are correct). Now, many folks think she should be procecuted for other reasons, but that’s kinda the whole problem, isn’t it?
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December 14, 2009, 11:50 amChris Travers says:
Playing devil’s advocate here:
My understanding of the vagueness doctrine is that laws are given quite a bit more leeway where malice is a component. So for example, the Drew conviction was overturned on the basis that the specific included charges she was convicted of were too vague, but Judge Wu seemed to accept that a felony conviction, where the tortuous acts provision was invoked, might have been allowed.
If the law requires fraud to convict, doesn’t that make it sufficiently understandable? I don’t have to know what an intangible right to honest services is to know what fraud is, right?
Or am I missing something?
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December 14, 2009, 11:53 amDavid Schwartz says:
The cases where they actually charge and convict on those kinds of cases are not that common. More often, they’re used to terrorize and coerce. (Though there do have to be a few from time to time or the laws won’t have any teeth.)
Anyone remember the Randal Schwartz case?
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December 14, 2009, 12:18 pmyankee says:
Haven’t read your book, but the one review I saw argued that your “three felonies a day” claim was way overblown. So what are those three felonies that your average American supposedly commits every day?
Criminal law may still be far too overbroad, but there’s overbroad and there’s overbroad.
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December 14, 2009, 12:20 pmTim says:
Mr. Silverglate:
Welcome! I hope the posters here aren’t too harsh on you. It was a joy for you to talk about your book over lunch at FIRE, and I look forward to reading it.
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December 14, 2009, 12:40 pmCurt Fischer says:
I have two concerns about vaguely worded and/or selectively enforced federal statutes. One is that virtuous, innocent people might be unjustly railroaded into prison. Dave N. and others who work in criminal law say this rarely happens. That’s good, but what about a related, but distinct, problem: Once in a while, a vaguely worded statute might be used to convict someone of a morally dubious, probably-criminal white collar crime. But for each prosecution how many shady operators are out in the world, doing the same morally dubious, probably-criminal stuff as our hypothetical convict?
Even if all people charged/convicted are guilty, selective enforcement of vaguely worded laws could mean that most “honest services” fraudsters go unpunished. Selective enforcement has the potential to lead to endemic corruption. That, to me, seems to be almost as big a worry as whether lily-white innocents sometimes get unjustly convicted.
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December 14, 2009, 12:41 pmyankee says:
As an ordinary citizen who can be prosecuted for violating the law, I don’t really care if something is a federal crime or a state crime. Theoretically I could vote with my feet to avoid a state criminal law but I’m not about to do that.
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December 14, 2009, 12:43 pmMike McDougal says:
Why? Why do people have to actually get screwed before you’re willing to deal with the potential for people to get screwed?
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December 14, 2009, 12:44 pmSteve says:
If I tell my boss I have a doctor’s appointment so I can take the day off for a job interview, have I committed honest services fraud?
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December 14, 2009, 1:03 pmKazinski says:
Pireader:
Here is a case where it’s pretty hard to find a crime, but the vendetta is pretty easy to spot:
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December 14, 2009, 1:07 pmAultimer says:
Civil rights opened the door. Then the bedwetters and moralists on the right demanded laws against bad behavior. Then the middle-left takes power and continues the trend, lest they be seen as “soft” on crime. When the right checks back in, they clearly have to one-up the immoralality of the last bunch, and so on.
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December 14, 2009, 1:16 pmShelbyC says:
Or if I allow my boss to think I’m fully focused on my job when I’m really spending way too much time commenting on the VC?
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December 14, 2009, 1:23 pmDave N. says:
Yankee,
The problem is that police will sometimes “shop” a case to get the highest possible penalty — they recognize, for example, that the federal sentencing guidelines provide harsher punishment than the state criminal code for certain offenses. To me that is inherently wrong. The local police work for political subdivisons of the state, not the federal government.
To me, a basic aspect of federalism is that the national government should be one of limited authority. As I have said on other threads, I have no problem with the feds prosecuting cases with a federal nexus, particularly cases where the feds led the investigation. I have a major problem, on the other hand, when the feds are used as a mechanism for forum shopping.
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December 14, 2009, 1:24 pmShelbyC says:
Not to mention poor Dr. Weiner (heh, heh). The judge threw out a procecution for an alleged Mann act violation, where there was no crossing of state lines and no real evidence of prostitution. The judge suggested the procecution was due to the doctor’s activism against a local hostpital management company, where the Director was a retired FBI agent.
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December 14, 2009, 1:38 pmEric Rasmusen says:
Hey, commentors, the question is whether anyone has ever been unfairly charged with or convicted of *honest services fraud*, not whether prosecutors are ever unfair. In fact, the more you show that ordinary laws are used to prosecute unfairly, the weaker becomes the argument against honest services fraud as a crime, since you’re showing that the prosecutor can get you one some other charge anyway.
One commentor mentioned the case that prompted the honest services fraud statute. That needs to be confronted by anyone who objects to it. I don’t remember it, but I seem to recall that some state official clearly took a bribe to award a contract, but somehow, according to the Supreme Court, existing statutes didn’t make that a crime, so the guy was let off. Do you think that bribery for doing things that a person has a duty to do anyway shouldn’t be a crime?
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Eric Rasmusen says:
Hey, commentors, the question is whether anyone has ever been unfairly charged with or convicted of *honest services fraud*, not whether prosecutors are ever unfair. In fact, the more you show that ordinary laws are used to prosecute unfairly, the weaker becomes the argument against honest services fraud as a crime, since you’re showing that the prosecutor can get you one some other charge anyway.
One commentor mentioned the case that prompted the honest services fraud statute. That needs to be confronted by anyone who objects to it. I don’t remember it, but I seem to recall that some state official clearly took a bribe to award a contract, but somehow, according to the Supreme Court, existing statutes didn’t make that a crime, so the guy was let off. Do you think that bribery for doing things that a person has a duty to do anyway shouldn’t be a crime?
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December 14, 2009, 2:02 pmJay says:
I feel like two things are being conflated to the point of incoherence here. Citing a bunch of cases where you’re essentially alleging that prosecutors/law enforcement are corrupt/bringing wrongful prosecutions is not the same as the argument that Congress has passed too many criminal laws, resulting in the average American actually committing federal felonies on a regular basis. I thought the latter was what Mr. Silverglate’s book was about, although I haven’t read it.
Obviously there’s an interaction between the two, since if a law is seriously overbroad or vague it allows selective prosecutions, or, as one commenter suggested, bringing prosecutions in order to exert pressure/screw up someone’s life, with no intent of actually pursuing them through to a conviction. But that doesn’t mean the two things are the same. If your example is that US Attorneys are so corrupt as to bring frivolous prosecutions on sex charges to retaliate for whistleblowing against an ex-FBI agent’s hospital, that’s not going to be solved by repealing laws. (And the Mann Act is an especially poor example of such an “overreaching” federal law, since it probably pre-dates most federal criminal law on the books today by a couple of decades).
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December 14, 2009, 2:48 pmguy in the veal calf office says:
If you regularly read Radley Balko at reason.com and the depressing Daily Brickbat posts), you would take it as a given that overzealous application of vague laws (or the over-militarization of police activity) produces unjust harassment of blameless citizens. Sometimes you just have to be swamped by examples to accept an a priori.
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December 14, 2009, 2:54 pmSeamus says:
Sure, but it should be a state crime.
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December 14, 2009, 3:01 pmShelbyC says:
Well, if the laws are ambigious enough where just about anybody can be procecuted (as appears to have been the case here), it sure makes it easier for the feds to help their buddy out. But you’re right, the Mann act is a poor example of recent overcriminalization, the feds have been overreaching based on the Mann act for about a hundered years now.
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December 14, 2009, 3:07 pmPubliusFL says:
I find it hard to believe that the honest services fraud statute is necessary to criminalize “clearly [taking] a bribe to award a contract.” Seems like there are plenty of laws and regs prohibiting soliciting or accepting anything of value in exchange for taking or not taking an official action, without anywhere near the vagueness of the honest services fraud statute.
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December 14, 2009, 3:49 pmChrisTS says:
:-)
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December 14, 2009, 4:00 pmDavid Schwartz says:
Is the argument really “we can’t make bribery a crime unless we also make leaving work early to play golf a crime too?” How about we simply relax the laws against bribery so they don’t require a showing of an intent to cause harm but simply require showing an intent to acquire a personal benefit outside the normal compensation for doing one’s job?
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December 14, 2009, 4:02 pmJay says:
“Well, if the laws are ambigious enough where just about anybody can be procecuted (as appears to have been the case here), it sure makes it easier for the feds to help their buddy out. But you’re right, the Mann act is a poor example of recent overcriminalization, the feds have been overreaching based on the Mann act for about a hundered years now.”
The Mann Act is so ambiguous that it allows just about anybody to be prosecuted?
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December 14, 2009, 4:50 pmWidmerpool says:
For all of the attorneys wondering what’s wrong with honest services fraud, may I remind you that if you are spending time looking at this blog while at work but have not deducted that time accordingly, congratulations, you have just committed honest services fraud. And may I introduce you to your new cell-mate, Bubba? He’s an Aquarius who enjoys long walks by the electric fence and has a fondness for small dogs and bunk mates.
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December 14, 2009, 4:57 pmSuperSkeptic says:
Near–absolutist? What exceptions do you see? I’d like to know.
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December 14, 2009, 5:00 pmJohn Moore says:
IANAL, but the Patriot Act Example seems to have a clear intent portion ” knowing or intending that they are to be used in preparation for, or in carrying out, a violation of...”
Is the objection here that it escalates the punishment of one of those violations (like a conspiracy statute does)?
Otherwise, agree totally. There is nothing more dangerous than a prosecutor with ambition and no conscience, because I think everyone probably does unknowingly commit felonies on a regular basis.
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December 14, 2009, 5:49 pmThe Volokh Conspiracy » Blog Archive » Honest Services Fraud: Your … « Blogging says:
[...] View original post here: The Volokh Conspiracy » Blog Archive » Honest Services Fraud: Your … [...]
whit says:
if anybody wants a good example of the abuse of this power and these laws, look at the tommy chong case.
here’s what wikipedia has to say on US vs. Chong
US vs. Chong
In 2003, Chong was targeted by two American investigations code-named Operation Pipe Dreams and Operation Headhunter, which sought out businesses selling drug paraphernalia, mostly bongs. Operation Pipe Dream was run from Pittsburgh, PA. US Attorney Mary Beth Buchanan oversaw the case. The estimated cost of Operation Pipe Dream was over $12 Million and included the resources of 2,000 law enforcement officers.[9]
Chong was charged for his part in financing and promoting Chong Glass/Nice Dreams, a company started by his son Paris. Chong’s case never went to trial; instead Chong accepted a plea agreement with the United States Attorney’s Office in which he admitted to distributing 7,500 bongs and water pipes on the Internet through Nice Dreams, a family company that was named for one of his movies. Chong agreed to plead guilty to one count of conspiracy to distribute drug paraphernalia in exchange for non-prosecution of his wife, Shelby, and his son, Paris. Chong fully cooperated with the government and was the first of the Operation Pipe Dreams defendants to plead guilty.[9]
At Chong’s sentencing, Assistant US Attorney Mary McKeen Houghton stated in her sentencing arguments that Tommy Chong “used his public image to promote this crime” and marketed his products to children.[10] US Attorney Mary Beth Buchanan also was present at the sentencing and released a statement to the press stating, “there are consequences for violating the law, even if the violator is a well-known entertainer like Thomas Chong.”[9]
While Chong argued for community service and home detention at his sentencing, the district judge denied his requests and sentenced him to 9 months in federal prison, a fine of $20,000, forfeiture of $103,514, and the loss of all merchandise seized during the raid of his business.[10] Chong served his sentence in Taft Correctional Institution from October 8, 2003 to July 7, 2004.
The entire episode was chronicled in the 2006, award-winning documentary by Josh Gilbert, The United States Government vs. Thomas B. Kin Chong, a/k/a Tommy Chong. The documentary premiered theatrically at the Film Forum in New York City in 2006.
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December 14, 2009, 6:11 pmShelbyC says:
Well, I guess if you subscribe to the principle that it’s never free...
In this case, the guy was prosecuted because an undercover FBI agent suggested that they meet in Clarksdale, Mississippi because she would be on the way from Mobile to Memphis, after the guy had told her he wasn’t interested in a hooker. The guy agreed to meet her for lunch.
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December 14, 2009, 6:50 pmShelbyC says:
Second whit on Tommy Chong, btw.
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December 14, 2009, 6:50 pmAJK says:
How is that an example of the practice being discussed here? Surely the average American finds it very easy to get through the days without selling bongs.
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December 14, 2009, 7:05 pmyankee says:
Seconded. Pointing out that some crimes receive overly harsh punishments gets us no further to proving that the average American commits three felonies a day.
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December 14, 2009, 7:27 pmroman says:
Look at what they did to this individual. What outrage and abuse leave one to think “it’s no wonder the statue is in trouble” checkout the story at http://www.honestservicefraud.com
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December 14, 2009, 7:30 pmroman says:
look at http://www.honestservicefraud.com you be the judge
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December 14, 2009, 7:32 pmChrisTS says:
Yo, Dude. We are all average.
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December 14, 2009, 7:35 pmRich Rostrom says:
“their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.”
ISTM that part of the problem is the evolving capacity of criminals to evade the letter of the law. There area good reasons to have strictly drawn and interpreted statutes. But then criminals find ways to carry out their crimes that are not covered.
The RICO Act was passed because crime organizations were using compartmentalized and distributed operations to nullify prosecutions de facto. Long and costly prosecutions resulted in only convictions of low-ranking mobsters on lesser charges, while leaving the rackets in operation and the profits rolling in. The deterrent effect was gone.
The answer has been broader, less rigorous statutes, and greater prosecutorial discretion. The cure may be worse than the disease, in the long term. But the disease is also potentially fatal. Organized crime and systematic corruption can take over a society and bleed it to death.
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December 14, 2009, 7:49 pmPintler says:
The facts alleged in the documentary referenced above are that Mr. Chong ran a bong business in ?California?, where doing so was completely legal, and shipped them to customers nationwide, excluding a handful of states which ban the sale of them. The US atty in one of those states (?PA?) enlisted the aid of a local informant to try to order bongs from Chong’s business. When the buyer stated his location, he was told they were unable to ship to ?PA?. The buyer (buyers?) persisted for some time. Eventually one placed a large order and arranged to pick it up in CA. That sale was the one over which he was prosecuted.
The wikipedia article notes that the precise details that allowed a PA prosecution for a CA sale are in dispute, without describing the dispute.
The wiki article points to an LA Weekly article with more details. From that, one explanation (also mentioned in the movie, IIRC) is that he pleaded in exchange for a promise to not prosecute his wife and son.
That kind of deal is certainly one that leaves me uncomfortable; I would certainly confess to being the man on the grassy knoll to avoid even a slim chance of my wife going to prison.
On the generalized ‘three felonies a day’ theme, the two I might or might not commit frequently (that I know of) are 1)being in possession of migratory bird feathers (namely, any pretty feather I find under the bird feeder) and 2)possessing prescription meds not in the original container (in our backpacking first aid kit).
I once tried, unsuccessfully, to convince several police officers that their practice of swapping deer rifles with family members in other states sans paperwork was not allowed. Maybe we can get adjoining cells.
Etc, etc. I’m looking forward to reading the book.
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December 14, 2009, 8:12 pmArthurKirkland says:
I am pleased to report that Mary Beth Buchanan — who asked the court to stiffen Tommy Chong’s term of incarceration because his decades-old films had ‘mocked law enforcement’ — is no longer a United States Attorney.
The libertarian-liberal alliance can celebrate the end of one more threat to liberty from conservatives’ misuse of the Department of Justice.
And Cheech, finally, is safe.
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December 14, 2009, 11:27 pmAJK says:
You can argue that the law in question is bad — I’d be the first to agree that it’s terrible, and that we’d be better off if it were repealed. But it still doesn’t really seem like a very good example of the practice that’s being described in this post — it seems very clear what would be a violation of the law, and it seems like it would be very easy to comply with the law if you were inclined to do so.
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December 15, 2009, 12:00 amRicardo says:
The point of the Tommy Chong case is that over-reaching by the federal government inevitably results in selective prosecution where a handful of high-profile people get lengthy prison sentences or fines in the six figures where others might well get probation or community service in the state courts. Go to Key West or Berkeley, for instance, and there is a shop selling bongs (“for tobacco use, only” the sign says) on every block in some neighborhoods.
Do these guys ever get prosecuted by the feds? It’s completely arbitrary.
That’s not to say any normal person will violate these laws unknowingly. Instead, it seems these laws are used by prosecutors primarily to squeeze plea bargains out of people who they want to go after for other reasons.
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December 15, 2009, 12:46 amArthurKirkland says:
Another of Mary Beth Buchanan’s greatest hits was the prosecution of an elected official — the coroner, Cyril Wecht, one of the world’s foremost forensic scientists — for, among other things, sending personal facsimiles with a public machine. The cost of the facsimile transmissions approximated five bucks.
Felonious faxing. Five bucks. I kid you not.
The jury wouldn’t convict, and calls from prominent local Republicans didn’t stop her from pledging to try Dr. Wecht (a Democrat) again. An appellate decision suppressing most of the evidence, however, led to dismissal of the charges.
She declared at the press conference that she still believed him to be guilty –‘he wasn’t acquitted of anything because it was a hung jury.’
I assume that prosecutor in Phoenix was taking notes.
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December 15, 2009, 1:40 amPintler says:
Well, speaking to the general ‘three felonies a day’ meme, as opposed to just the honest services part, Mr. Chong’s version of the facts (insert obvious caveat) is that he was openly running a legal business in CA, refused to sell in PA where it would have been illegal, was prosecuted nonetheless, and given the choice of fighting the charges or have all the power available to the prosecutor turned against his family. His wife was involved because, IIRC, she signed a loan agreement or some such.
I suspect that most laypeople would think that honestly signing loan documents for a legal business being run openly by your spouse, with a business license, etc., would not expose you to felony charges from a state on the other side of the country. That, to me, is the ‘three felonies’ meme — that a lot of people may be committing malum prohibitum crimes without realizing they are even close to the line, or that the line is so fuzzy that it essentially impossible to be 100% sure you’re on the safe side of it.
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December 15, 2009, 8:16 amTuesday round-up | SCOTUSblog says:
[...] at the Volokh Conspiracy, Harvey Silverglate offers his critique of the “honest services doctrine,” which in his [...]
arch1 says:
Bravo. I look forward to the postings to come.
One reason why I might have trouble knowing whether I’ve broken law X is that law X is vague.
Another reason, of course, is that law X, even if non-vague, is one of a huge number of laws which potentially apply to my activities, and it is impossible for me to be aware of, much less understand, all of them. (That everyone knows this doesn’t make the situation less surreal or more acceptable).
I hope that you have a chance to address both the local (vagueness) and global (volume & complexity) aspects in your postings. I’m especially interested in your assessment of the incentives of the various players involved, and how those incentives might be adjusted to get things moving in a better direction.
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December 15, 2009, 2:46 pmFederal Farmer says:
Yep, even when I leave a firearm at a friends house for the weekend (since bringing it home would bea crime) we follow all IL state and Federal laws regarding transfer of firearms which includes copies, in duplicate, of a temporary firearm transfer.
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December 15, 2009, 2:49 pmanonthu says:
ShelbyC, fascinating link; I think that case was discussed here recently?
I just typed “biggers weiner mann act” in google, without really thinking that through...
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December 15, 2009, 4:57 pmMaking Criminals out of All Americans | KEYTLaw says:
[...] also “Honest Services Fraud: Your Third Felony Today?” which [...]
Moonrider says:
It is clearly a crime when one person does any of the following: murder, assault, theft, fraud, unlawful imprisonment, and physical damage to another’s property. Additionally, deliberate and malicious harm to an animal could also be termed a crime. We have always had clear laws against all those actions, so why do we need a criminal code that towers, hmm, how high is that code book now?
Why do congress, state legislatures, and city/county councils think they need to create new laws all the time that either merely add another layer onto already existing laws or completely duplicate them? Or newly criminalize activities that really do not fall under the heading of any of those real crimes, but are more accurately termed vices, such as drug use, prostitution, gambling, smoking tobacco, etc.? (We own our own bodies, so we have the unalienable right to ingest whatever we want, and to engage in any activities that do not violate the rights of others, so these laws are clearly unconstitutional.) Or criminalize normal human behavior such as particular kinds of sexual acts between consenting adults, discriminating (we have the unalienable right to associate, or not, with whom we please, so those discrimination laws are truly unconstitutional) or allowing others to engage in certain behaviors on their own privately owned, but open to the public, property (smoking, drinking, gambling, ingesting drugs etc.)?
Is it that electeds think they need to be creating laws in order to justify their existence on the taxpayers dime? Or is it something darker, perhaps a deliberate but gradual criminalizing of everything humans do so they can remove anyone they want from society whenever they want? Anyone got any answers?
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December 16, 2009, 1:59 amMoonrider says:
It is clearly a crime when one person does any of the following: murder, assault, theft, fraud, unalwful imprisonment, and physical damage to another’s property. Additionally, deliberate and malicious harm to an animal could also be termed a crime. We have always had clear laws against all those actions, so why do we need a criminal code that towers, hmm, how high is that code book now?
Why do congress, state legislatures, and city/county councils think they need to create new laws all the time that either merely add another layer onto already existing laws or completely duplicate them? Or newly criminalize activities that really do not fall under the heading of any of those real crimes, but are more accurately termed vices, such as drug use, prostitution, gambling, smoking tobacco, etc.? (We own our own bodies, so we have the unalienable right to ingest whatever we want, and to engage in any activities that do not violate the rights of others, so these laws are clearly unconstitutional.) Or criminalize normal human behavior such as particular kinds of sexual acts between consenting adults, discriminating (we have the unalienable right to associate, or not, with whom we please, so those discrimination laws are truly unconstitutional) or allowing others to engage in certain behaviors on their own privately owned, but open to the public, property (smoking, drinking, gambling, ingesting drugs etc.)?
Is it that electeds think they need to be creating laws in order to justify their existence on the taxpayers dime? Or is it something darker, perhaps a deliberate but gradual criminalizing of everything humans do so they can remove anyone they want from society whenever they want? Anyone got any answers?
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December 16, 2009, 2:02 amHave You Committed Your Three Felonies Today? - Hit & Run : Reason Magazine says:
[...] that undermines the principle of fair notice, which is crucial to the rule of law. On Monday he opened with the recently argued Supreme Court case involving “honest services fraud,” defined as “a scheme [...]
uberVU - social comments says:
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Harvey Silverglate says:
The notion that it is OK for federal prosecutors to go after anyone for anything that does not qualify as absolutely pristine conduct, is breath-taking from a civil liberties and rule-of-law point of view. It is this attitude that has enabled federal prosecutors to run roughshod over American civil society. It reminds me of the old (and in many ways current) Soviet criminal code’s criminalization of “holliganism”, which resulted in the imprisonment of many political dissidents. HAS
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December 18, 2009, 10:21 amMichael Collins says:
Retired Army Colonel Tom Spellissy was convicted for conspiracy to commit honest services fraud. The prosecutor and law enforcement agent lied to get a search warrant and then painted a non existent scenario to the jury filled with lies. The government’s primary witness denied that a conspiracy existed. Go to http://www.fight4spellissy.com to learn more about this case. Even the judge stated that “a serious miscarriage of justice may have occured in this case.” Hopefully, SCOTUS will throw out this undefined law.
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December 18, 2009, 2:06 pmroman says:
What happens if HSF is dismissed yet many have also been charged with Wire Fraud/Mail Fraud? So no,(maybe) HSF but WF/MF still remains? They still hang you!
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December 18, 2009, 2:14 pmMike, Clearwater FL says:
Tom Spellissy’s case will soon be overturned. Judge Whittemore stated, “It may not have been intended by you [Spellissy] to violate the law, but he [Burke] was in a position of conflict. And an employee who is in a position of conflict with a competing entity has not only a conflict of interest, but that presents that intangible right or the jeopardy – puts in jeopardy the intangible right of honest services. And that is where this case begin [s] and that’s where it ended.” (Dkt 114 p. 83–84). Given that the “Honest Service Fraud” gets thrown out for being unconstitional, I am betting that Spellissy will strike back at those who lied to the Courts.
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December 21, 2009, 2:40 pmHarvey Silverglate says:
The guilty plea rate in some states might be high, in some states lower. But my experience is that when my clients in state criminal prosecutions plead, they plead to crimes they’ve really committed. And the overwhelming number of these cases involve quite petty crimes, like marijuana possession, where the conviction is vacated after a period of good behavior. HARVEY SILVERGLATE
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December 21, 2009, 3:42 pmHarvey Silverglate says:
There are a number of people who have been railing against “honest services fraud,” and finally they are being heard. But I will be heartened when there is a broad realization that federal prosecutions across the board suffer from the same defect as “honest services fraud.” Vagueness is a disease that now permeates much, if not most, of the federal criminal code. There are historic and systemic reasons for this. But the reform must be across the board, not just reserved for politicians and businessmen. HAS
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December 21, 2009, 3:45 pmHarvey Silverglate says:
While I would prefer to see state political corruption prosecuted by state prosecutors, I think that due process is observed when, at least, the violations pursued are not lawful under state law. It surely cannot serve Due Process of Law for the feds to go after a state public official or private business who has carefully conformed his or her conduct to the requirements of state law. HAS
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December 21, 2009, 3:47 pmHarvey Silverglate says:
“Honest services” was not a legitimate crime for decades. Rather, it was prosecuted, even though later found not to be encompassed within the wire fraud statute. After that decision, the Congress amended the fraud statute by adding “honest services fraud,” but, I think the Supreme Court is soon to announce, that, too, is vague. The truth is that federal “fraud” — whether it be mail, wire, securities or other — is very ill-defined and hence dangerous. So in fact, “honest services” prosecutions were never legitimate, even though much prison time has been served on their account.
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December 21, 2009, 3:59 pmHarvey Silverglate says:
One of the problems with federal criminal law is that the notion of MENS REA, or criminal intent, is very much watered down. When a federal statute requires that a defendant act “knowingly” or “willfully” in order to be convicted, it typically means that the person knows what he is doing; it does not require that he be shown to know that what he is doing is a crime. Given the opacity of so much of federal criminal law, this means that one can be convicted even if there is not a scintilla of evidence that one knew he or she was committing a crime. State law is much more typically based on ancient common law notions of the knowing and intentional commission of a crime, with the recognition that the conduct is criminal.
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December 21, 2009, 4:03 pmroman says:
Now that HSF is on the SCOTUS hit list. This is what will happen if you are fround guilty of HSF.
In a two page opinion from the 11th circuit UNITED STATES OF AMERICA, Vs. LUIS M. CANDELARIO, No. 09–11101 D. C. Docket No. 07–00211-CR-ORL-22-DAB (http://www.ca11.uscourts.gov/unpub/ops/200911101.pdf)
Having reviewed the record, and considered the briefs and oral arguments of the parties, we are satisfied that the government presented sufficient evidence to convict Candelario for conspiring to commit wire fraud. Thus, we need not address his challenge to the honest services fraud statute, § 1346, or to the sufficiency of the evidence regarding conspiracy to commit honest services fraud.
Forget about responding to the wire fraud issued brought up om appeal. Just nail the guy!
For more on this check out http://www.honestservicefraud.com
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January 20, 2010, 3:27 pm