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April 20, 2010

Does a key line in Stevens foreshadow the demise of "honest-services" fraud statute?

I found Chief Justice Roberts opinion for the Supreme Court in the Stevens "animal porn" case (basics here) to be a pleasure to read for a number of reasons (including my discovery that my new iPad is great for reading SCOTUS slip opinions).  But one particular sentence jumped out as an indication that there may be other forthcoming SCOTUS rulings that notable federal criminal statutes are constitutionally problematic.  Specifically, this sentence in the Court's discussion of prosecutorial discretion struck me as a harbinger of rulings to come:

We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

If I recall oral arguments correctly, I remember that a key part of the US Government's defense of the broad "honest services" fraud statute at issue in the Black case and some other pending SCOTUS cases (including Skilling) was its assertion that federal prosecutors would always and only use the statute responsibly.  This line from the Stevens decision today suggests that such a promise does not comfort eight out of nine of the Justices.  (In this context,I think it extra notable and telling that the lone dissenter in Stevens, Justice Alito, is also the lone former federal prosecutor on the Court.)

April 20, 2010 at 11:36 AM | Permalink


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It certainly cemented Alito’s status as the most government-friendly justice.

Posted by: Marc Shepherd | Apr 20, 2010 11:56:05 AM

"Throughout his career, with few exceptions, Judge Alito has sided with the police, prosecutors, immigration officials, and other government agents, while taking a minimalist approach to recognizing official error and abuse... In this area, Judge Alito’s record is at the margin of the judicial spectrum, not the mainstream."

From testimony by Obama nominee Goodwin Liu, at the 2006 Alito confirmation hearings, available here:


Posted by: Praga | Apr 20, 2010 1:04:24 PM

Alito is without a doubt the most reliable vote for the prosecution in criminal cases.

Posted by: public defender | Apr 20, 2010 1:09:43 PM

i have to agree any judge dumb or retarded enough to accept this statement

"We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

from a govt official OBVIOUSLY needs their head examined to find the hole their brains have leaked out of !

Posted by: rodsmith | Apr 20, 2010 1:16:04 PM

I don't think Alito's dissent here is all that telling with respect to his status as government friendly. I think that he just marches to a different drummer on this issue. It seems to me that the thrust of Alito's dissent is "come on, guys". I take seriously our First Amendment rights. But the majority's fears here seem a bit overblown. Perhaps we'll sacrifice a few animals to get a better statute (and this one could be improved), and maybe that's a price worth paying. But Alito, I think, simply thinks the exercise is not worth taking. I'd hardly take away a pro-government attitude here. Other cases, maybe so. But not here.

Posted by: federalist | Apr 20, 2010 1:41:58 PM

Let me just join the chorus here on Alito. I've long-maintained that he is the most reliable government vote on the Court. Having just read that quote from Goodwin Liu makes me confident in Liu's judgment. His statement was spot-on.

Posted by: DEJ | Apr 20, 2010 1:42:46 PM

Liu may be right about Alito, but he'll be another Reinhardt on a court badly needing some sense. And Liu's attacks on Alito were waaaaaaaaay over the top. So much for judicial temperment.

Posted by: federalist | Apr 20, 2010 1:46:37 PM

I don't think Alito's dissent here is all that telling with respect to his status as government friendly.

Not on its own, but since he joined the Court he has generally been the government’s most dependable vote in criminal cases.

Posted by: Marc Shepherd | Apr 20, 2010 1:57:12 PM

Mr Alito must be the government's best conservative guy. He dissent's on all of the liberal/sentence reducing rulings. Goes to show if you are one of the governments guy, you would fight for an un-constitutional bill.

Posted by: N/A | Apr 20, 2010 4:29:55 PM

If Alito is the most reliable pro-government vote, who is the most reliable pro-criminal vote?

Posted by: Bill Otis | Apr 20, 2010 4:37:08 PM

I don't see it as pro government or pro criminal. I didn't think that was what justice was about. I do see it as freedom vs control. That is a tension that is thousands of years old.

Posted by: beth | Apr 20, 2010 5:15:49 PM

Hello -- I'm a student. An "honest service fraud" type issue is also present in a case in New York, where someone is being prosecuted for “identity theft” on the grounds that he allegedly emailed an ironical parody in which a professor “confessed” to plagiarism. The fraud issue arises because identity theft requires some kind of fraudulent intent, and here the prosecutors are saying the defendant engaged in a "fraudulent scheme to influence a debate." The judge’s order holds that identity theft occurs whenever you “assume someone’s name with the intent to gain a benefit.” She explains that this benefit is “broadly defined” by the statute — so broadly, that the government doesn’t have to specify what it is. It is hard to see how this ruling would not apply to almost any act of parody. If I send out a "confession" in the Pope's name to influence a debate, will I be charged with identity theft?

Here are links to some of the briefs:

First Amendment brief:

Brief with background about the controversy involved:

Reply brief summarizing case:

Judge’s order:

Professor Tzvee Zahavy has posted a statement on the case:


Posted by: Truffle | Apr 20, 2010 5:34:48 PM

federalist, contrary to your view, I believe Stephen Reinhardt is a great jurist. He's perhaps too old now to be on the Supreme Court but he should be. Another Brennan, Cardozo, or Brandeis.

Posted by: Michael R. Levine | Apr 20, 2010 6:27:03 PM


The judge is clearly right on the law here. Defrauding someone and then passing it off as a parody is a mockery of the law. In fact, the picture in the post by Tzvee Zahavy gets to the heart of the matter. We call such people "impersonators," not "parodists". I don't have any problem with the notion that if you impersonate someone else you have stolen their identity, especially when that impersonation was not obvious to the victims at that time nor were you impersonating a easily identifiable public figure.

There might be some merit to the claim that the law, as written, sweeps too broadly because it could conceivably target public impersonators of famous figures. But that is not the facts of this case. This was an obvious attempt to defraud and harass a private individual.

Posted by: Daniel | Apr 20, 2010 6:41:47 PM


I think you miss the point. How was anyone "defrauded"? Please define the fraud. Alternatively, please define the fraudulent "benefit," which comes down to the same thing.

Same thing with impersonation. The only thing separating "criminal" impersonation from "harmless" impersonation (including parody) is the element of fraud. So, where is that element?

This is why the honest services case seems of interest, because the Court seems likely to rule that fraud (and hence a fraudulent benefit) must be tangible. Is "influencing a debate" a tangible form of fraud?

Furthermore, the impersonated individual here was a public figure, as Professor Zahavy points out.

Posted by: Truffle | Apr 20, 2010 8:22:04 PM

Michael R. Levine -

Reinhardt is 79 years old. With any luck, Obama will indeed appoint him. But I don't have that kind of luck.

This is what a Weekly Standard article said about him 13 years ago: "Reinhardt is one of the most overturned judges in history. In this term alone, the high court has reversed seven opinions that Reinhardt has either written or been party to. These haven't been narrow reversals, either--all seven of them have been unanimous."

Somewhere, there has to be a compilation of the cases he's written that have been overturned. My guess is that it is the highest of any currently sitting federal appellate judge in the country.

And it's not merely that he's a liberal extremist, although he is. It's that he just can't follow the law.

Posted by: Bill Otis | Apr 20, 2010 9:09:22 PM


My remarks addressed to "Michael" above were meant in response to your comment (which I mistakenly thought had posted by Michael R. Levine).

Posted by: Truffle | Apr 20, 2010 9:37:05 PM

Truffle. It wasn't Michael that posted but me.

(1) He is not a public figure as far as the law goes. A public figure is more than someone who goes out in public. I concede that it's a term of art not bound by rigid definitions. Madonna is a public figure. A college prof is not. If that is your bone of contention we'll just have to agree to disagree.

(2) Your point about a tangible benefit is indeed interesting. I personally think that honest fraud statues are legal, but I think the court will rule the other way. Having said that, I'm not sure if it will help your case or not depending on how the court rules. Context is critical.

(3) Your reliance on "parody" is misguided. Go read Justice Souter's opinion. Parody is a mocking of content, not of authorship. Everyone knows who the author of a parody is, or at least they know it is not the original author. No one confuses a Weird Al parody with the original thing. The essence of parody is that there is no confusion between the original and the rip-off.

With impersonation the goal is precisely to confuse authorship (identity). The correct analogy for impersonation is plagiarism.

(4) Fraud is easy to define, it is to "say the thing which is not". Again, I know that under Justice Breyer's view on the law fraud doesn't exist. I doubt however that the full court will go that far. Even though I think the court will overrule the honest service fraud statues I don't think they will stretch it as far as you want it to go.

Posted by: Daniel | Apr 20, 2010 9:42:45 PM

Mr. Otis:

"And it's not merely that he's a liberal extremist, although he is. It's that he just can't follow the law."

I fully understand your position, but I just disagree. I happen to like "liberal extremists"; they are so rare now. I do strongly disagree that he "can't follow the law." He just sees the law from a different perspective. I find his opinions forceful, logical and persuasive and fully supported (in his fashion) by precedent. His opinions are innovative, admittedly in a liberal way. Besides many years ago, he praised me for my advocacy so I stand by him for ever. See U.S. v. France, 886 F.2d 223, 228 (9th Cir. 1986). I forgot (or repressed) how old he is. I guess I refused to recognize his age because that means I'm getting old too, and I refuse to admit that.

Best regards
Michael Levine

Posted by: Michael R. Levine | Apr 20, 2010 11:18:49 PM


Sorry about the name mix-up.

I did not mean to suggest that all college professors are public figures. Rather, this one is, apparently, a public figure because, as Zahavy indicates, he frequently appears on television and is very vocal in a controversy.

You say that fraud is to "say the thing which is not," but the classic definition of irony is "saying one thing and meaning the opposite." We're talking about speech here that contained a message. Well, then, let's define the message before we conclude that the communication is fraudulent. It's not as if someone emailed a bank saying "I'm Professor X, here is my code, please send Y money from my account."

As for parody, what was the "content" mocked, for example, in David Frye's cruel parodies of Richard Nixon, when he was heard talking with his wife in their bedroom, waking up from a bad dream, etc.? Here, the emails seem to have contained absurd references to plagiarism as a "minor failing," along with a link to an article exposing the alleged plagiarism and pompous orders "not to mention the name" of the plagiarized scholar. Clearly, what was being mocked was the delicate silence surrounding allegations of plagiarism. This does seem to be a parody; perhaps not a particularly successful one, but at any rate what's being criminalized is an ironical use of someone's name, or ridicule. I can hardly imagine a professor's colleagues receiving such an email and not immediately suspecting it's a joke.

What really seems to be going on, and here you have a good point, is that emails are not a traditional venue for parodies. But in the lack of a law defining what does or doesn't "qualify" as a legitimate parody, we seem to be confronting a vagueness problem. Seems to me they're trying to create a precedent that you can't parody someone in this manner, and the academics are going along with it because they want to feel protected against criticism coming from amateurs outside the ivory tower.

Posted by: Truffle | Apr 20, 2010 11:54:49 PM

Truffle. LOL. It sounds to me like you and I are having the old Holmes vs Learned Hand debate.

I think the distinguishing characteristic is the context not the actual words. Sure irony is to say the thing which is not but if you put down that you make 100K in wages on your loan application when you really make 10K is that irony or fraud? Irony is ok in a work of fiction or even a work of literature. It's not ok on a government passport application.

The problem with this case is the context. It's not just the e-mail as the method of transmission it's the entire factual milieu in which the actions take place. If the words of the e-mail had been published in Newsweek as an essay I'd probably be defending them as legitimate artistic expression.

I don't infer the fraud and the harassment from the specific words; I draw it from the context. This guy is claiming he just meant the e-mail as a joke but that doesn't pass the "smell test".

The fundamental issue here can be put directly but crudely. There is a old childhood trick where someone points at your crotch and tells you that your fly is open; when you look down to zip it up they swat your nose with their pointing hand and laugh at you. Is that a joke? Did they defraud you? Did they just tell an outrageous lie? Did they fail to perform an honest service?

I'd argue that it's not a joke, that they did tell a lie, that they did defraud you, and that they did not perform an honest service. But that's ok because it happened on the childhood playground. Yet, ideally, people grow up. I'd argue that it's not ok when a person in a position of power like a Skilling does it. Behavior that's ok for six year olds should not be ok for adults; that's what it means to be civilized.

Posted by: Daniel | Apr 21, 2010 1:57:26 AM

yea i remember that old one!

" There is a old childhood trick where someone points at your crotch and tells you that your fly is open; when you look down to zip it up they swat your nose with their pointing hand and laugh at you."

of course when someone did it to me they either got a slap up side the head or a fist in the stomach depending on my agravation at the time.

Posted by: rodsmith | Apr 21, 2010 2:23:54 AM

Yes, I remember that one too. But if the issue is our gut feeling about the whole context, exposing plagiarism through a crude form of ridicule is hardly equivalent to nose-swatting. What if someone saw the professor commit a murder on the street, and sent out a false confession in the professor's name? Would that be fraud? Think of the definition of harassment in the federal statute: "with no legitimate purpose."

BTW, I certainly don't mean to suggest that it was a nice thing to do. The problem is identifying the criminality of it, the swatting on the nose, the fraudulent "benefit" that makes this different from a libel suit. Otherwise, the case itself doesn't pass the "smell" test, and it was wrongly directed to the criminal justice system. Here, the "crime," the swatting, seems to be the crime of embarrassment. But they know that won't pass the smell test, so they argue there were "false" plagiarism allegations and a "fraudulent scheme to influence a debate." These seem like strange claims for government prosecutors to be be making.

Posted by: Truffle | Apr 21, 2010 3:27:57 AM

P.s. I forgot to point out that emails are hardly passport applications. As one of the briefs points out, a previous legal decision described such emails as an "act of literary impersonation." That would put it clearly in the precinct of libel rather than fraud, as they argue in the briefs.

Posted by: Truffle | Apr 21, 2010 3:36:19 AM

Michael R. Levine --

Since you are too modest to do it yourself, I will do it.

This is the remarkable praise heaped on you by a unanimous Ninth Circuit panel:

"Finally, we add a word about the public defender who represented France. Throughout these lengthy proceedings, he has represented his client with vigor and diligence. His supplemental brief on the constitutionality of Sec. 924 was both a substantial and an impressive undertaking although, ironically, it turned out to be irrelevant to our disposition of the case. His Gomez brief, which appeared only a few weeks after the decision was handed down, was equally impressive, and was dispositive. In an era when the offices of federal public defenders will likely bear both a greater share of the burden of defending federal defendants and a greater responsibility for securing the rights of the accused, see Caplin & Drysdale, Chartered v. United States, --- U.S. ----, 109 S.Ct. 2667, 2677, 105 L.Ed.2d 528 at 547, 559 (1989) (dissenting opinion), it seems appropriate to commend exceptional effort in an unusual case. This case was unusual and the public defender's efforts were exceptional."

I can certainly see why you wouldn't have bad word to say about Stephen Reinhardt.

Let me add one little story. In the Fourth Circuit, where I argued most of my cases, the tradition is that everybody acts in the model of the Southern Gentleman. It was not unusual to hear the lead judge in the panel effusively thank the defendant's lawyer at the end of the argument (although not as effusively as the praise you got). I never got thanked, not one single time.

I didn't bother me, though, because it didn't take me long to realize that, the more lustily the lawyer got thanked, the more certain it was that his client would lose. My "thanks" came in the opinion, which not infrequently bore no small resemblance to my brief.

That was not what happened in your case. You got both the praise and the victory. So good for you!

Posted by: Bill Otis | Apr 21, 2010 9:20:05 AM

Mr. Otis,

While we may have philosophical differences from time to time, you are truly a gentleman and a scholar! Do you ever get to Portland, Oregon? If so, give me a call.

Michael R. Levine
1001 S.W. Fifth Avenue, Suite 1414
Portland, oregon 97204

Posted by: Michael R. Levine | Apr 21, 2010 12:36:36 PM

Michael --

My pleasure, sir. I'm generally stuck on the East Coast, but if I get out there I shall look you up.

I was an appellate lawyer for the United States for over 20 years, and the kudos you got in that opinion are the most enthusiastic I have ever seen. You must have done one hell of a job.


Posted by: Bill Otis | Apr 21, 2010 5:38:26 PM

Alito...classic authoritarian personality.

Posted by: John K | Apr 22, 2010 5:34:51 PM

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