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Honest Services Fraud (18 USC § 1346) is a criminal charge that you can make to a grand jury against corrupt government officials.
18 USC § 1346 applies the federal mail and wire fraud statutes (18 USC 1341 and 1343, respectively) to deprivations of honest services by public officials and employees.
General mail and wire fraud elements:
To support a conviction for mail and wire fraud, one must prove beyond a reasonable doubt:
1) a defendant’s knowing and willful participation in a scheme or artifice to defraud;
2) with the specific intent to defraud;
3) regarding material information; and
4) the use of the mails or interstate wire communications in furtherance of the scheme. U.S. v. Antico, 275 F.3d 245, 261 (3d Cir. 2001); U.S. v. Waymer, 55 F.3d 564, 568 (11 Cir. 1995);11th Eleventh Circuit Pattern Jury Instructions, Criminal § 41.2; U.S. v. Woodward, 149 F.3d 46, 54 (1st Cir. 1998).
With reference to Section 1346 prosecutions, a “scheme or artifice to defraud” includes a scheme to deprive another of the intangible right of honest services.
No technical definition, but usually involves some sort of fraudulent misrepresentations or omissions calculated to deceive others. U.S. v. Pearlstein, 576 F.2d 531, 535 (3rd Cir. 1978).
A public official acts as trustee for the citizens and the State and thus owes the normal fiduciary duties of a trustee to them. U.S. v. Silvano,
Specific intent to defraud can be established using circumstantial evidence. U.S. v. Rosen, 130 F3d 5, 9 (1st Cir,. 1997); U.S. v. Woodward, 149 F.3d 49, 57 (1st Cir. 1997).
Violation of a state statute can establish intent to defraud. For example, a defendant’s repeated disregard for Fla. Stat. Section 112.3148 (requiring the filing of quarterly gift disclosures, listing any gifts with an aggregate value of more than $100), coupled with potential personal benefit, can be used as proof of intent to defraud. U.S. v. Sawyer, 85 F.3d 713, 725 (1st Cir. 1996).
Concealment of gifts by failing to report them on financial disclosure forms (local, state, or federal) can be used to establish intent to defraud. U.S. v. Espy, 23 F.Supp.2d 1, 7 (D.C. Dist. Ct. 1998).
Materiality is an element of the mail and wire fraud statutes. A public official has an affirmative duty to disclose material information to the public employer.
In the context of honest services prosecutions, this element plays a particularly important role, requiring proof that the fraudulent representation or failure to disclose must relate to a “material” fact or matter.
Honest Services Fraud is concerned with the manner in which officials make their decisions, and not the wisdom of the official action. (U.S. v. Lopez-Lukis, 102 F.3d 1164,1169 n. 13 (11th Cir. 1997).) The statute is 18 U.S.C. 1346.
“When a government officer decides how to proceed in an official endeavor . . . his constituents have a right to have their best interests form the basis of that decision. If the official instead secretly makes his decision based on his own personal interests – as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest – the official has defrauded the public of his honest services.” Id.
Once the decision-making process has been corrupted, it is irrelevant whether a public official’s actions actually benefitted his constituents. It is not a defense to honest services fraud that a public official would have performed the same official action absent the receipt of things of value.
A violation occurs when there is undisclosed, biased decision-making, whether or not tangible loss to the public is shown. (U.S. v. Antico, 275 F.3d at 263.)
Wikipedia on “Honest Services Fraud.”
St. Petersburg Times article on “Honest Services Fraud.”
Yahoo Search Results for “Honest Services Fraud.”
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