In the Supreme Court, there’s a recent dissent from a decision not to take a case that sheds some interesting light on the point of that part of the indictment. The case before the Supreme Court involved corruption by Chicago city employees. The Seventh Circuit had approved a jury instruction that stated: “As part of the honest services they owed the City and the people of the City of Chicago” were what Scalia describes as “a laundry list of ‘laws, decrees, and policies.’” His dissent quotes the Seventh Circuit: “It may well be 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.”
Scalia’s opinion notes that, unlike the Seventh Circuit, the Fifth requires a violation of a specific state law for an “honest services” mail fraud conviction. Essentially resisting the impulse to federalize all bad acts, Scalia makes clear he thinks the Fifth Circuit view is correct. The Scalia dissent makes clear that at least in his (at this point solitary) view, prosecutors need to be reined in somewhat on overbroad applications of the mail fraud statute. No other justice joined his dissent.