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

Chris Travers: 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?

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.

Jay: 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.
And as for your experiences as a federal judge’s clerk: I never said that I saw a conviction and said “that’s something I do three times a day.” After all, I’m not an accountant, nor a securities dealer, nor a state pol, nor do I run a Moslem charity. But I can easily examine my typical week and see how vulnerable I am. And many people I know and have interviewed feel the same.
And the problem I’m writing about is not overcriminalization per se. It is the prosecution of innocuous acts on the basis of VAGUE federal statutes. Overbreadth and overcriminalization are problems in the eyes of libertarians and federalists, but prosecutions based on VAGUE statutes are the concern of everyone because they are a fundamental civil liberties violation because they do not give the citizen fair notice of what conduct is being criminalized.

“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.

Deregulator: 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-reviewThe 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?

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

josh: Mr. SilvergateAl 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?

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

Dave N.: 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.

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

This post was mentioned on Twitter by pr_law: Honest Services Fraud: Your Third Felony Today? http://bit.ly/6Kt4fk #postrank #law…

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?

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?

I just typed “biggers weiner mann act” in google, without really thinking that through…

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.

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.

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.

You can argue that the law in question is bad…

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.

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.

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.

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.

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.

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.

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.

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.

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.

yankee: 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.

Yo, Dude. We are all average.

pireader: 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.)

look at http://www.honestservicefraud.com you be the judge

AJK:
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.

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.

if anybody wants a good example of the abuse of this power and these laws, look at the tommy chong case.

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.

Jay: The Mann Act is so ambiguous that it allows just about anybody to be prosecuted?

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.

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.