Bobby DeLaughter’s honest services: Some Notes on Mail Fraud

With that, I’m going to comment on some possible defenses now that I’ve looked at some cases under the statute. There are some key words here:

Honest

Can Judge DeLaughter say that he wasn’t denying anyone “honest services” because he ruled correctly and how he should have ruled in any event, and therefore there’s no fraud?

If that’s a defense, that means that a trial would involve a trial-within-the-trial about the correctness of the rulings DeLaughter made, and possibly some expert testimony. If his rulings were even arguably correct, does he walk on mail fraud?

There’s a possible major flaw in this argument, though, noted below under the heading “concealment.”

Scienter

By definition, a fraud scheme involves knowing you’re committing fraud– that’s what is known as the scienter requirement for fraud. The 7th circuit case I mentioned states that this element requires the public official have notice of the illegality of their act. There’s a split among the courts as to whether there has to be a violation of free-standing legal obligations (the argument is made that mere ethical lapses don’t suffice, for instance, and that there has to be some violation of a stated duty), while other courts have ruled that there’s no such requirement.

It seems clear that the reason the DeLaughter indictment specifically cites Miss. Code Ann. § 97-11-53, which makes it a state crime to illegally influence a public official, is to cover this possible requirement and to make clear that DeLaughter was on notice he was acting illegality. Can the prosecutors also cite anti-earwigging rules for that purpose?

This is a place that the “honest” part recurs– if DeLaughter still meant to rule correctly, did he have the mental state (scienter) required for fraud? There are cases that support, and other cases that reject, these arguments DeLaughter could make about whether he was going to be “honest” and whether there was a denial of anything tangible if it didn’t effect his rulings.

Concealment

The off-the-record contact by Peters is critical. There are cases that hold that concealment of a conflict of interest will suffice to violate this statute. If the Government wants to push the envelope a little, it could argue that Peters’ off-the-record contact with DeLaughter funneling defense information to the judge all by itself denied the public of DeLaughter’s honest services, even if it did not affect his rulings.

NMC
2/18/9