Tim O'Toole Comments on the Honest-Services Fraud Statute After Skilling in The National Law Journal

The 'Skilling' Anticlimax
The National Law Journal

In this article, Tim O'Toole comments on honest-services fraud prosecutions in the aftermath of Skilling v. U.S. While many believed that the Supreme Court's 2010 opinion in the case would provide leverage for those convicted under the statue, the circuit courts for the most part have upheld convictions. One issue that some lawyers think caused a split in the courts is the question of what constitutes bribery in the context of honest-services fraud.

"Most honest-services fraud cases have been bribery cases," O'Toole said. "And so, one of the questions post-Skilling is:  What is bribery?" He represents Jack Abramoff lobbyist Kevin Ring, who was convicted after the Skilling ruling of honest-services fraud. The definition of bribery is important in the context of honest-services fraud cases, many of which involve campaign contributions protected by the First Amendment, he said. For instance, Ring was a lobbyist whose job was to influence public officials. Under the panel's definition, giving meals and tickets to public officials "was enough to commit honest-services fraud, even if there was never any agreement between Kevin and a public official," O'Toole said.

O'Toole petitioned the U.S. Supreme Court on June 17 to reverse the ruling, which "threatens to undo the limiting construction of the honest-services-fraud law the Court adopted in Skilling" by expanding the statute's application. The ruling also conflicts with decisions in at least four other circuits, according to his petition.

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