Supreme Court Sides with Skilling, Black
The U.S. Supreme Court has sided with former Enron CEO Jeffrey Skilling and newspaper magnate Conrad Black that a law prosecutors love to use in white-collar crime prosecutions didn’t apply to the two men.
Justice Ruth Bader Ginsburg wrote that the so-called “honest services” law only applies to bribery and kickback schemes. In Skilling’s case, bribes and kickbacks didn’t apply. But the high court left to appeals courts the final outcome of the two men’s cases, saying their findings don’t mean the convictions must be overturned.
Black had been accused of looting his newspaper company, which included the Chicago Sun-Times, the Daily Telegraph of London, and the Jerusalem Post. At the root of Black's case is $5.5 million he and two other executives of Hollinger International claimed were management fees and the government claimed belonged to the company's shareholders.
Skilling was convicted for his role in deceiving investors in Enron as the energy trading giant collapsed.
The ruling could set up a new trial for Skilling, or a reduction in his 24-year sentence.
But a Chicago attorney points out to the Chicago Tribune that both men were convicted of many crimes. So they're both likely to stay behind bars.
"Both were convicted of multiple offenses, and, under the Supreme Court's ruling, if any of those other offenses is supported by the evidence, their convictions will stand," Eric Sussman told the Tribune.
The law, passed in 1988, makes it a crime to “deprive another of the intangible right of honest service.”
Critics have called the law too vague. But it’s been a favorite of prosecutors going after dishonest public officials and corporate criminals. Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy would have gone further than their colleagues and struck down the law altogether.
Still, the ruling could have far-reaching implications.
MaryJeanette Dee, a partner at Richards Kibbe & Orbe in New York, says in an email to Portfolio.com that many cases where there have been no kickbacks or bribes involved are likely to be overturned as a result of the Supreme Court actions.
And the high court's findings remove a popular tool from the arsenal of prosecutors—the broad application of a vaguely worded law.
“In reversing lower-court rulings today in the Skilling, Black, and Weyhrauch cases, the Supreme Court did not just trim the edges of the ‘theft of honest services’ doctrine of mail fraud, but chopped the doctrine back to its core—cases involving bribery or kickback schemes," said Jack Falvey, a former federal prosecutor who represents corporations and individuals in white-collar crime cases, in a statement. "Though the Court resisted the views of three justices who would have declared the law unconstitutional, it effectively takes a bludgeon out of the hands of aggressive federal prosecutors who viewed every conflict of interest as a theft of honest services.”
Former Illinois Governor Rod Blagojevich was originally charged under the statute. The ruling could also end a case against former Alaska lawmaker Bruce Weyhrauch. Weyrauch is accused of failing to disclose that he was in negotiations for a job with an oilfield services company while the state legislature was considering an oil bill.
Blagojevich's trial is currently under way in Chicago.
The fraud conviction of ex-HealthSouth CEO Richard Scrushy could also be affected by the ruling.
In New York State, a lawyer for former Senate Majority Leader Joseph Bruno said he hopes to meet with the judge and prosecution soon to discuss the case against Bruno.
Bruno’s lawyer, William Dreyer, said he would know better what impact, if any, those rulings would have on Bruno’s appeal after meeting with Judge Gary L. Sharpe and the prosecution.
“We are seeking a conference with the judge and prosecution as soon as possible,” said Dreyer, of the Albany law firm Dreyer Boyajian LLP. “We don’t know when that’s going to be at this point. We’re in the process of evaluating the decision, and we’re going to talk about it first with the court and the prosecution.”
Bruno was convicted in December under a federal statute designed to prosecute public officials who deprive citizens of their “honest services.” He was sentenced to two years in prison but has been out on bail pending the Supreme Court’s decision.
During oral arguments in the Skilling case in December, several justices appeared to favor limiting application of the law, and Blagojevich was re-indicted with an eye to limitations being placed on the application of the law. Still, among the charges against the man accused of trying to sell President Barack Obama's Senate seat, is depriving the public of honest services.
The Business Review of Albany contributed.
Kent Bernhard Jr. is News Editor of Portfolio.com





