In 2003, a Federalist Society study estimated that there were more than 4000 federal crimes scattered throughout the fifty titles of the U.S. Code.1 That number jumps to 10,000 if criminal enforcement of federal regulations is included.2 While the numbers are astounding, what is even more disturbing for members of a democratic society is the fact that the majority of these laws are vague and ambiguous. For example, there are more than 100 different types of mens rea in these statutes.3 Even the commonly used term "willfully" has many meanings in federal criminal law.4
This article illustrates this fatal flaw of American criminal law by analyzing two of the Department of Justice’s favorite tools for combating white collar crime: the honest services fraud statute, 18 U.S.C. § 1346, and the securities fraud statute, 15 U.S.C. § 10(b). As shown below, these two statutes are so vague, ambiguous, and overly broad that even the U.S. Supreme Court has had difficulty figuring out what they mean—ultimately engaging in judicial legislation to add some measure of specificity to these hopelessly overbroad laws. As proud as we may be of our nine Supreme Court justices, they are not our elected representatives and should not be making up the law as they go along because that clearly is the task of Congress.
I. Honest Services Fraud
As the country industrialized after the Civil War, Congress passed the mail-fraud statute. Embodied in its current form at 18 U.S.C. § 1341, the statute outlaws any scheme or artifice to defraud another of money or property. Around the time of World War II, courts began to develop a theory of mail fraud known as "honest services" fraud. Under that theory, one could violate the mail-fraud statute by engaging in a scheme or artifice to defraud another of the right to "honest services." By the 1970s, federal prosecutors around the country had begun to use this theory to prosecute state and local officials who took bribes, arguing that the corrupt officials had deprived citizens of "honest services."5 Prosecutors also began to apply the theory of honest services fraud in the private sector, to employees who breached fiduciary duties owed to their employer.6 Although the mail-fraud statute gave no textual indication that it encompassed breaches of fiduciary duty owed by state or local officials to their constituents or by private employees to their employer, courts nevertheless began to utilize the statute to prosecute such breaches of fiduciary duty as mail fraud.7
In 1987, the Supreme Court attempted to put an end to the judicial development of honest services fraud in McNally v. United States.8 In that case, Howard Hunt, who as chairman of the Kentucky Democratic Party, had de facto control over selecting insurance agencies for the state, entered into an agreement with an insurance agency to share commissions of more than $50,000 from the state with a company controlled by Hunt and operated by his business partner, Charles J. McNally.9 The indictment alleged that McNally had entered into a scheme to obtain money by false pretenses and to defraud the citizens and government of Kentucky of the right to have their governmental affairs conducted honestly.10 The judge charged the jury that the defendants could be found guilty of fraud if the government proved that Hunt had directed commissions to his company without disclosing that fact to the public and the state government, whose actions could have been affected by such disclosure.11 Although Hunt did not hold public office, the Sixth Circuit found that Hunt could make, and had made, decisions as a result of his special relationship with the government.12 The court therefore concluded that Hunt was guilty of honest services fraud. On review, the Supreme Court reversed, holding that the mail fraud statute protects only property rights, not the intangible "right to good government." This holding narrowed the mail-fraud statute to cover only schemes and artifices to defraud another of money or property by means of false or fraudulent pretense, representations, and promises.13
In Carpenter v. United States, the Court elaborated on McNally’s holding that the mail-fraud statute applies only to protected property rights, as opposed to the unprotected intangible right to honest and impartial government.14 In Carpenter, a writer at the Wall Street Journal provided friends with advance copies of the "Heard on the Street" column, which was contrary to the newspaper’s policy by depriving it of confidential business information.15 The writer’s friends then traded on the basis of the yet-to-be-published articles.16 The Court made clear that the newspaper’s right to maintaining the confidentiality of its business information was a tangible property right, unlike the intangible right to good government, which was not a property right per McNally.17 The Court further held that the mailing element of the fraud statute had been satisfied based on the circulation of the Wall Street Journal through the mail, which was an essential part of the writer’s scheme to defraud his employer of the right to protect its confidential business information before publication.18
In the wake of McNally and Carpenter, Congress passed 18 U.S.C. § 1346, which provides that "the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."19 The statute passed as part of the Omnibus Drug Bill with virtually no legislative history.20 Its language was not the subject of any committee report or floor debate.21 Indeed, Representative John Conyers stated that the statute was intended merely to overturn the McNally decision.22 Following final passage, the Senate Judiciary Committee entered into the congressional record a report stating that § 1346 "overturns the decision in McNally v. United States."23
By overturning McNally, Congress invited the courts to reenter the field of judicial legislation by grappling with what it means to "deprive another of the intangible right of honest services."24 In the ensuing years, when dealing with public officials, some courts held that the services owed by a public official must be due under state law.25 Other courts required the public official to have breached a fiduciary duty established by state or federal law.26 Yet other circuits rejected a state-law limiting principle and held that honest services were governed by a uniform federal standard.27
In the private sector, the meaning of honest services fraud was even more confused. Some courts held that a fiduciary duty was required to establish honest services fraud.28 Not all agreed, however. In United States v. Ervasti, the Eighth Circuit held that a breach of fiduciary duty is not a necessary element, because nothing in § 1346 suggests that it is.29 In United States v. Rybicki, the Second Circuit held that a personal injury lawyer violated § 1346 by participating in a scheme involving payments made to insurance adjusters who, in turn, failed to report them to their employer in contravention of company policy.30 Affirming the conviction, the court noted that, "in a relationship that gives rise to a duty of loyalty comparable to that owed by employees to employers," honest services fraud could exist.31
Some courts required a showing that a defendant’s conduct resulted in reasonably foreseeable economic harm in order for the offense to fall within the honest services fraud statute.32 The District of Columbia Circuit, on the other hand, required only that it be reasonably foreseeable that the economic harm could have resulted from a breach of fiduciary duty.33 But the Tenth Circuit required no such showing of economic harm.34 The Fifth Circuit, while requiring some detriment, believed that the detriment could be established by the breach of fiduciary duty itself.35 In contrast, the Seventh Circuit rejected a reasonably-foreseeable-harm test, and required the breach of fiduciary duty be for personal gain at the expense of the party to whom the duty was owed.36 The Second Circuit rejected any requirement of harm or gain and instead required only a showing of materiality (i.e., that the defendant’s misrepresentation or omission naturally tended to influence—or was capable of influencing—a change in conduct).37 Thus, the elements of honest services fraud differed in each circuit, as courts—rather than Congress—tried to define the crime.
Finally, the Supreme Court entered the fray in Skilling v. United States.38 The Court, however, simply engaged in further judicial legislation, ostensibly to save the statute from being declared unconstitutional. The Court acknowledged the statute’s vagueness but chose to save the statute by limiting it to the core bribery and kickback offenses, which the majority asserted these offenses constituted the extent of the statute’s application before McNally.39
Skilling’s judicial legislation does not truly resolve the matter. Now that honest services fraud has been interpreted to cover bribes and kickback cases, must the bribe or kickback violate a fiduciary duty? For example, if an employee favors a supplier that takes him golfing, is that a breach of fiduciary duty owed to his employer? And, if so, what is its source of the duty—state law, federal law, or the employer’s company ethics rules?
In the wake of Skilling, the Third Circuit held that in order to prove honest services fraud, the government must establish an overt act in furtherance of a quid pro quo, such as mutual and contemporaneous benefits.40 In other words, the government must prove that "the payor provided a benefit to a public official intending that he will thereby take favorable [action] that he would not otherwise take" and that "the official accepted the benefit with the intent to take official [action] to benefit the payor."41 This merely creates more judicial legislative gloss in an attempt to define what is a "bribe" or "kickback" in the absence of a congressional definition in 18 U.S.C. § 1346.
While Skilling sought to confine honest services fraud to bribes and kickbacks, holding it does not apply to self-dealing or failure to disclose, there is an easy way around this. The government can avoid this limitation by merely alleging that a financial-disclosure form required by government or a private employer was mailed or sent over the wires via the Internet, and that such transmission was an act in furtherance of a "bribe" or a "kickback" scheme in violation of 18 U.S.C. § 1346. Thus, the Skilling decision, while potentially helpful in limiting an overly broad statute, creates as many issues in application as it resolves in theory. Public officials and employees will undoubtedly have to brave numerous future prosecutions until the Supreme Court further refines the meaning of the statute.
II. Insider Trading
Section 10(b) of the Securities and Exchange Act was first passed in 1934. But no one believed at that time that Section 10(b), which outlawed the use of manipulative or deceptive devices or contrivances in violation of SEC rules, covered insider trading. In fact, it was not until the 1940s that the SEC promulgated Rule 10b-5, which outlawed: employing any device, scheme or artifice to defraud; the making of an untrue statement of a material fact; or engaging in acts, practices or courses of business which would operate as a fraud or deceit upon any person.42 It then took the SEC another twenty years to suggest in Cady, Roberts & Co., that Section 10(b) covered insider trading.43 Thereafter, it took the Supreme Court another thirty-six years and four separate opinions before it was able to define the parameters of insider trading.
In 1968, the Second Circuit initially suggested that anyone who possesses information must either disclose that information to the investing public or be precluded from trading or recommending the stock while the information remains undisclosed.44 But in 1980, in Chiarella v. United States, the Supreme Court rejected that interpretation and substituted what became known as the classical theory of insider trading.45 Under that theory, the relationship between a corporate insider and a shareholder of the corporation gives rise to an obligation on the part of the insider either to disclose or refrain from trading.46 If the trader is neither an insider nor a fiduciary, there simply is no obligation to disclose material nonpublic information.47
Three years later, in Dirks v. SEC, the Supreme Court tackled the scenario of a tippee who receives material nonpublic information from an insider.48 The Court concluded that a tippee has a duty to disclose or refrain from trading that derives from the insider’s duty. This is not because the tippee merely received the information, but rather because the insider improperly made the information available to the tippee in breach of a fiduciary duty.49 Whether improper disclosure breaches fiduciary duty depends upon the purpose of the disclosure. If the purpose was to benefit the person who provided the information to the tippee, then the disclosure constitutes a breach of fiduciary duty.50 However, as the dissent correctly points out, this motivation requirement is blatant judicial activism with no basis in the law of fiduciary duty.51 The Dirks majority’s improper-purpose requirement never was an element of a breach of fiduciary duty until the Court judicially legislated it for insider trading cases.
In Dirks, the Supreme Court left open the question whether an individual who does not derive nonpublic information from the corporation whose stock he trades may be held liable for insider trading under Section 10(b). In Carpenter v. United States, the Court confronted the issue of whether a person engages in insider trading by misappropriating information in breach of fiduciary duty and trading on that information, where the duty breached was not owed to the corporation whose stock was traded.52 However, the Court divided four to four on the issue, and it was not until 1997, in United States v. O’Hagan, that the Supreme Court finally ruled that the so-called "misappropriation theory" was encompassed by Section 10(b) and Rule 10b-5.53
Recently, there has been a great deal of controversy about whether members of Congress are exempt from the insider-trading laws.54 While there is obviously no exemption in the text of Section 10(b), when a member of Congress utilizes material non-public information gained in a legislative capacity, it is unclear whether that member could be liable under the so-called misappropriation theory confirmed in O’Hagan.55 Under that theory, whenever someone misappropriates information in breach of a fiduciary duty and trades on the information, the individual has engaged in fraud in connection with the purchase or sale of a security in violation of Section 10(b).
Do members of Congress owe a fiduciary duty to Congress or to their constituents? Before the Supreme Court’s decision in Skilling, one would have thought that under the honest-services-fraud theory, members owe such a fiduciary duty, either to Congress or to the people of the United States. But the Supreme Court’s judicial legislation in Skilling limited the honest-services-fraud theory to bribes and kickbacks. If, however, as Justice Ginsburg suggested in Skilling, and as Justice Scalia agreed, the honest-services-fraud theory is based fundamentally on a breach of fiduciary duty, and that breach arises out of a duty of loyalty owed by a state or local official to his constituency, it would seem inconceivable that members of Congress would not owe a similar duty of loyalty.56 One great difficulty in sustaining such a prosecution, however, is the Speech or Debate Clause. Under the Speech or Debate Clause, members of Congress cannot be held to answer for their legislative acts.57 It would therefore be extremely difficult, if not impossible, to prosecute a member of Congress for insider trading. While it could be shown that the member had traded, the Speech or Debate Clause would make it essentially impossible to show that the member had derived the insider information motivating his trade from information obtained during the legislative process.
The mail-fraud and insider-trading statutes, which account for most of the ink devoted to white-collar crime in legal writing, plainly illustrate that much of American criminal law is vague and ambiguous. Because of its vagueness and ambiguity, criminal law does not inform prosecutors, defendants, or the courts what it is that Congress is outlawing. In a democratic society, laws should inform the public and the courts specifically what is outlawed. Yet in the case of these two foundation stones of white-collar criminal law, even the U.S. Supreme Court has struggled for decades to ascertain what the laws prohibit and what is allowed. And while courts were attempting to clarify these ambiguities, numerous people were prosecuted and jailed. In a democratic society, the existence of such ambiguity and its unjust results are intolerable.
A wholesale reform of the federal criminal code is needed to eliminate these ambiguities so that the law clearly states what conduct is prohibited. Such reform is, unfortunately, unlikely. Indeed, the current Congress cannot even agree on a budget. Thus, it is unlikely that Congress will ever expend the intellectual capital necessary to bring greater specificity to the U.S. criminal code. We need a new Justinian or Napoleon to convene the greatest jurists and legal thinkers of our time to come together, think through, and accurately define the elements of our criminal statutes. Leaving the process to piecemeal decisions by our courts is inefficient and undemocratic. The people have a right to know the elements of a crime when a law is enacted, not thirty years later as a result of appealed convictions based on vague and ambiguous congressional laws.
1 Julie R. O’Sullivan, The Federal Criminal 'Code' Is a Disgrace: Obstruction Statutes as Case Study, 96 J. CRIM. L. & CRIMINOLOGY 643, 648-49 (2006).
2 Id. at 649 (stating that if all federal regulations in force as of 1998 were included, the number of criminal offenses would top 10,000).
3 William S. Laufer, Culpability and the Sentencing of Corporations, 71 NEB. L. REV. 1049, 1064-65 (1992).
4 See Spies v. United States, 317 U.S. 492, 497 (1943) ("Willful, as we have said, is a word of many meanings, its construction often being influenced by its context.").
5 See, e.g., United States v. Mandel, 862 F.2d 1067, 1074 (4th Cir. 1988) (discussing the government’s theory of the case that "the State of Maryland and its citizens were defrauded of the honest and faithful service of Mandel . . . .").
6 See, e.g., United States v. George, 477 F.2d 508, 513 (7th Cir. 1973) ("Here the fraud consisted in Yonan’s holding himself out to be a loyal employee, acting in Zenith’s best interest, but actually not giving his honest and faithful services, to Zenith’s real detriment.").
7 See United States v. Siegel, 717 F.2d 9, 23-25 (2d Cir. 1983) (Winter, J., dissenting in part & concurring in part).
8 483 U.S. 350, 361 (1987).
9 Id. at 352-53.
10 Id. at 353.
11 Id. at 354-55.
12 Id. at 355.
13 In the wake of McNally, the Fourth Circuit granted former Maryland Governor Marvin Mandel, who had served a prison sentence in connection with his mail fraud racketeering conviction, a writ of coram nobis, available to remedy errors of the most fundamental character where a defendant is not in custody, but the conviction has some lingering effect beyond its mere stigma. United States v. Mandel, 862 F.2d 1067, 1070, 1075 (4th Cir. 1988).
14 484 U.S. 19, 19, 25 (1987).
15 Id. at 22-23.
16 See United States v. Carpenter, 791 F.2d 1024, 1026-27 (2d Cir. 1986).
17 Carpenter, 484 U.S. at 25, 28.
18 Id. at 29.
19 18 U.S.C. § 1346 (2006).
20 United States v. Brumley, 116 F.3d 728, 742 (5th Cir. 1997) (Jolly & DeMoss, JJ., dissenting).
22 134 CONG. REC. 33,297 (1988).
23 134 CONG. REC. S17,360, S17376 (Daily Ed. Nov. 10, 1988) (statement of Sen. Joe Biden).
24 See 134 CONG. REC. 33,250 (1988).
25 See, e.g., Brumley, 116 F.3d at 739.
26 See, e.g., United States v. Murphy, 323 F.3d 102, 116-17 (3d Cir. 2003) ("We thus endorse (and are supported by) the decisions of other Courts of Appeals that have interpreted § 1346 more stringently and required a state law limiting principle for honest services fraud . . . .").
27 See, e.g., United States v. Sorich, 523 F.3d 702, 712 (7th Cir. 2008); United States v. Urciuoli, 513 F.3d 290, 298-99 (1st Cir. 2008); United States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007); United States v. Sawyer, 239 F.3d 31, 41-42 (1st Cir. 2001); United States v. Bryan, 58 F.3d 933, 942 (4th Cir. 1995).
28 See, e.g., United States v. Hausmann, 345 F.3d 952, 956 (7th Cir. 2003); United States v. Martin, 228 F.3d 1, 17 (1st Cir. 2000); United States v. Frost, 125 F.3d 346, 368 (6th Cir. 1997); United States v. Gray, 96 F.3d 769, 774 (5th Cir. 1996).
29 201 F.3d 1029, 1036 (8th Cir. 2000).
30 354 F.3d 124, 126-27 (2d Cir. 2003).
32 See, e.g., United States v. Serafino, 281 F.3d 327, 332 (1st Cir. 2002); United States v. Vinyard, 266 F.3d 320, 327-28 (4th Cir. 2001); Martin, 228 F.3d at 17; United States v. Pennington, 168 F.3d 1060, 1065 (8th Cir. 1999); United States v. Devegter, 198 F.3d 1324, 1329-30 (11th Cir. 1999); Frost, 125 F.3d at 368-69.
33 See, e.g., United States v. Sun-Diamond Growers of Cal., 138 F.3d 961, 973-74 (D.C. Cir. 1998); United States v. Lemire, 720 F.2d 1327, 1337 (D.C. Cir. 1983).
34 See, e.g., United States v. Welch, 327 F.3d 1081, 1104 (10th Cir. 2003).
35 See, e.g., United States v. Brown, 459 F.3d 509, 519 (5th Cir. 2006).
36 See, e.g., United States v. Hausmann, 345 F.3d 952, 956, 959 (7th Cir. 2003).
37 United States v. Rybicki, 354 F.3d 124, 145, 162 (2d. Cir. 2003).
38 130 S. Ct. 2896 (2010).
39 Id. at 2928-31 (discussing the court’s decision to apply the statute only to bribery and kickbacks under a pre-McNally rationale).
40 United States v. Wright, 665 F.3d 560, 568 (3d Cir. 2012) ("In the honest services fraud context, the Government must prove overt acts in furtherance of a quid pro quo, such as mutual and contemporaneous benefits.").
41 Id. at 568.
42 17 C.F.R. § 240.10b-5 (2011).
43 Order Suspending from National Securities Exchange, 1961 WL 59902 (Nov. 8, 1961).
44 SEC v. Tex. Gulf Sulphur, 401 F.2d 833, 848 (2d Cir. 1968).
45 445 U.S. 222, 223 (1980); United States v. O’Hagan, 521 U.S. 642, 651-52 (1997) ("Under the ‘traditional’ or ‘classical theory’ of insider trading liability, § 10(b) and Rule 10b-5 are violated when a corporate insider trades in the securities of his corporation on the basis of material, nonpublic information.").
46 O’Hagan, 521 U.S. at 652.
47 Chiarella, 445 U.S. at 232, 235.
48 463 U.S. 646, 658 (1983).
49 Id. at 660.
50 Id. at 662.
51 See id. at 667-68 (Blackmun, J., dissenting).
52 484 U.S. 19, 22-24 (1987) (describing the issue in terms of the defendant’s duty to his employer, a journal which published information about certain stocks).
53 United States v. O’Hagan, 521 U.S. 642, 649-50, 652 (1997) ("The ‘misappropriation theory’ holds that a person commits fraud ‘in connection with’ a securities transaction, and thereby violates § 10(b) and 10b-5, when he misappropriates confidential information for trading purposes, in breach of a duty owed to the source of the information.").
54 See, e.g., Andrew George, Public (Self)-Service: Illegal Trading on Confidential Congressional Information, 2 HARV. L. & POL’Y REV., no. 1, Winter 2008, at 161, 162-63; Donna M. Nagy, Insider Trading, Congressional Officials, and Duties of Entrustment, 91 B.U. L. REV. 1105, 1106-07 (2011).
55 See Bud W. Jerke, Comment, Cashing in on Capitol Hill: Insider Trading and the Use of Political Intelligence for Profit, 158 U. PA. L. REV. 1451, 1485-86 (2010).
56 See Skilling v. United States, 130 S. Ct. 2896, 2930-31 (2010).
57 United States v. Helstoski, 442 U.S. 477, 488-89 (1979).