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Sarah Kelly, a member of the firm’s Government Investigations and White Collar Defense practice group, published “Prosecuting Honest Services Fraud Post-Skilling” in White Collar Law360’s “Expert Analysis” section on December 16. The article discusses the U.S. Supreme Court’s opinion in Skilling v. United States and its impact on honest services fraud prosecutions. The honest services fraud statute exposes public officials and private individuals to criminal penalties for wire or mail fraud that deprives their constituencies or shareholders of the “intangible right of honest services.” Before Skilling, the definition of honest services fraud reached a host of conduct, including bribery, kickbacks, self-dealing and the failure to disclose material information. The Skilling court, however, found that broad definition to be unconstitutionally vague unless limited to two discrete kinds of conduct — bribes and kickbacks. Sarah notes that while it is still too early to judge the complete impact of Skilling, recent high-profile cases are charting the waters. The recent convictions of former Illinois Governor Rod Blagojevich and Massachusetts Speaker of the House of Representatives Sal DiMasi indicate that the government may not have trouble refocusing its efforts to prove a direct bribe or kickback.

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