Abstract

For over thirty years federal prosecutors have used honest services fraud to punish breaches of a pre-existing duty in both the public and private sectors. For the same thirty years, courts have expressed reservations about the breadth of the offense and problematic policy issues that arise from its enforcement, such as overcriminalization, distorting the balance between state and federal criminal law, the dangers of common law adjudication in criminal cases, and the enhanced power the offense confers on prosecutors. As a result of these concerns, nine circuit courts have imposed limitations on the scope of the offense. Recent decisions by the Fifth and Seventh Circuits create yet another limitation on the scope of honest services fraud. Although the two new limitations differ slightly in their elements, both decisions focus on the predicament of the "faithful servant." After reviewing the decisions, this essay identifies the parameters of this new limitation and briefly discusses its wider significance.