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                      SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
    ROBERT SORICH, TIMOTHY MCCARTHY, AND 

      PATRICK SLATTERY v. UNITED STATES 

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

   STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

             No. 08–410.   Decided February 23, 2009 


  The petition for a writ of certiorari is denied.
  JUSTICE SCALIA, dissenting from denial of certiorari.
  In McNally v. United States, 483 U. S. 350 (1987), this
Court held that while “[t]he mail fraud statute clearly
protects property rights, . . . [it] does not refer to the in
tangible right of the citizenry to good government.” Id., at
356. That holding invalidated the theory that official
corruption and misconduct, by depriving citizens of their
“intangible right” to the honest and impartial services of
government, constituted fraud. Although all of the Fed
eral Courts of Appeals had accepted the theory, see id., at
364 (STEVENS, J., dissenting), we declined to “construe the
statute in a manner that leaves its outer boundaries am
biguous and involves the Federal Government in setting
standards of disclosure and good government for local and
state officials.” Id., at 360 (majority opinion). “If Congress
desires to go further,” we said, “it must speak more clearly
than it has.” Ibid.
  Congress spoke shortly thereafter. “For the purposes of
this chapter, the term ‘scheme or artifice to defraud’ in
cludes a scheme or artifice to deprive another of the intan
gible right of honest services.”          18 U. S. C. §1346.
Whether that terse amendment qualifies as speaking
“more clearly” or in any way lessens the vagueness and
federalism concerns that produced this Court’s decision in
McNally is another matter.
  Though it consists of only 28 words, the statute has been
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                     SCALIA, J., dissenting

invoked to impose criminal penalties upon a staggeringly
broad swath of behavior, including misconduct not only by
public officials and employees but also by private employ
ees and corporate fiduciaries. Courts have upheld convic
tions of a local housing official who failed to disclose a
conflict of interest, United States v. Hasner, 340 F. 3d
1261, 1271 (CA11 2003) (per curiam); a businessman who
attempted to pay a state legislator to exercise “informal
and behind-the-scenes influence on legislation,” United
States v. Potter, 463 F. 3d 9, 18 (CA1 2006); students who
schemed with their professors to turn in plagiarized work,
United States v. Frost, 125 F. 3d 346, 369 (CA6 1997);
lawyers who made side-payments to insurance adjusters
in exchange for the expedited processing of their clients’
pending claims, United States v. Rybicki, 354 F. 3d 124,
142 (CA2 2003) (en banc); and, in the decision we are
asked to review here, city employees who engaged in
political-patronage hiring for local civil-service jobs, 523
F. 3d 702, 705 (CA7 2008).
   If the “honest services” theory—broadly stated, that
officeholders and employees owe a duty to act only in the
best interests of their constituents and employers—is
taken seriously and carried to its logical conclusion, pre
sumably the statute also renders criminal a state legisla
tor’s decision to vote for a bill because he expects it will
curry favor with a small minority essential to his reelec
tion; a mayor’s attempt to use the prestige of his office to
obtain a restaurant table without a reservation; a public
employee’s recommendation of his incompetent friend for a
public contract; and any self-dealing by a corporate officer.
Indeed, it would seemingly cover a salaried employee’s
phoning in sick to go to a ball game. In many cases, more
over, the maximum penalty for violating this statute will
be added to the maximum penalty for violating 18 U. S. C.
§666, a federal bribery statute, since violation of the latter
requires the additional factor of the employer’s receipt of
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                      SCALIA, J., dissenting

federal funds, while violation of the “honest services”
provision requires use of mail or wire services, §§1341,
1343. Quite a potent federal prosecutorial tool.
   To avoid some of these extreme results, the Courts of
Appeals have spent two decades attempting to cabin the
breadth of §1346 through a variety of limiting principles.
No consensus has emerged. The Fifth Circuit has held
that the statute criminalizes only a deprivation of services
that is unlawful under state law, United States v. Brum
ley, 116 F. 3d 728, 735 (1997) (en banc), but other courts
have not agreed, see United States v. Martin, 195 F. 3d
961, 966 (CA7 1999) (Brumley “is contrary to the law in
this circuit . . . and in the other circuits to have addressed
the question”). The Seventh Circuit has construed the
statute to prohibit only the abuse of position “for private
gain,” United States v. Bloom, 149 F. 3d 649, 655 (1998),
but other Circuits maintain that gain is not an element of
the crime at all, e.g., United States v. Panarella, 277 F. 3d
678, 692 (CA3 2002). Courts have expressed frustration at
the lack of any “simple formula specific enough to give
clear cut answers to borderline problems.” United States
v. Urciuoli, 513 F. 3d 290, 300 (CA1 2008).
   It is practically gospel in the lower courts that the stat
ute “does not encompass every instance of official miscon
duct,” United States v. Sawyer, 85 F. 3d 713, 725 (CA1
1996). The Tenth Circuit has confidently proclaimed that
the statute is “not violated by every breach of contract,
breach of duty, conflict of interest, or misstatement made
in the course of dealing,” United States v. Welch, 327 F. 3d
1081, 1107 (CA10 2003). But why that is so, and what
principle it is that separates the criminal breaches, con
flicts and misstatements from the obnoxious but lawful
ones, remains entirely unspecified. Without some coher
ent limiting principle to define what “the intangible right
of honest services” is, whence it derives, and how it is
violated, this expansive phrase invites abuse by headline
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                     SCALIA, J., dissenting

grabbing prosecutors in pursuit of local officials, state
legislators, and corporate CEOs who engage in any man
ner of unappealing or ethically questionable conduct.
  In the background of the interpretive venture remain
the two concerns voiced by this Court in McNally. First,
the prospect of federal prosecutors’ (or federal courts’)
creating ethics codes and setting disclosure requirements
for local and state officials. Is it the role of the Federal
Government to define the fiduciary duties that a town
alderman or school board trustee owes to his constituents?
It is one thing to enact and enforce clear rules against
certain types of corrupt behavior, e.g., 18 U. S. C. §666(a)
(bribes and gratuities to public officials), but quite another
to mandate a freestanding, open-ended duty to provide
“honest services”—with the details to be worked out case
by-case. See generally Brown, Should Federalism Shield
Corruption?—Mail Fraud, State Law and Post-Lopez
Analysis, 82 Cornell L. Rev. 225 (1997).
  Second and relatedly, this Court has long recognized the
“basic principle that a criminal statute must give fair
warning of the conduct that it makes a crime.” Bouie v.
City of Columbia, 378 U. S. 347, 350 (1964). There is a
serious argument that §1346 is nothing more than an
invitation for federal courts to develop a common-law
crime of unethical conduct. But “the notion of a common
law crime is utterly anathema today,” Rogers v. Tennessee,
532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for
good reason. It is simply not fair to prosecute someone for
a crime that has not been defined until the judicial deci
sion that sends him to jail. “How can the public be ex
pected to know what the statute means when the judges
and prosecutors themselves do not know, or must make it
up as they go along?” Rybicki, supra, at 160 (Jacobs, J.,
dissenting).
  The present case in which certiorari is sought implicates
two of the limiting principles that the Courts of Appeals
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                     SCALIA, J., dissenting

have debated—whether the crime of deprivation of “honest
services” requires a predicate violation of state law, and
whether it requires the defendant’s acquisition of some
sort of private gain. The jury was instructed that peti
tioners, who were employed by the city of Chicago, were
obliged, “[a]s part of the honest services they owed the
City and the people of the City of Chicago,” to abide by a
laundry list of “laws, decrees, and policies,” including a
1983 civil consent decree entered into by the city which
barred patronage hiring for some city jobs. App. to Pet. for
Cert. 137–140. The Seventh Circuit approved the instruc
tion, again rejecting the Fifth Circuit’s violation-of-state
law principle. “It may well be,” the court said, “that
merely by virtue of being public officials the defendants
inherently owed the public a fiduciary duty to discharge
their offices in the public’s best interest.” 523 F. 3d, at
712. And though petitioners received no direct personal
benefit from the patronage they doled out on behalf of
their political masters, the Seventh Circuit found it suffi
cient that the patronage appointees—who were not
charged in the scheme—accrued private gain. Id., at 709.
   Finally, in addition to presenting two of the principal
devices the Courts of Appeals have used in an effort to
limit §1346, the case also squarely presents the issue of its
constitutionality. The Court of Appeals rebuffed petition
ers’ argument that if §1346 really criminalizes all conduct
that is not “in the public’s best interest” and that benefits
someone, it is void for vagueness. The court cited two
prior Circuit decisions which, it said, “provided sufficient
notice.” Id., at 711.
   It may be true that petitioners here, like the defendants
in other “honest services” cases, have acted improperly.
But “[b]ad men, like good men, are entitled to be tried and
sentenced in accordance with law.” Green v. United
States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In
light of the conflicts among the Circuits; the longstanding
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                    SCALIA, J., dissenting

confusion over the scope of the statute; and the serious
due process and federalism interests affected by the ex
pansion of criminal liability that this case exemplifies, I
would grant the petition for certiorari and squarely con
front both the meaning and the constitutionality of §1346.
Indeed, it seems to me quite irresponsible to let the cur
rent chaos prevail.
