The news is full of Enron exec Jeffrey Skilling’s appeal to the U.S. Supreme Court, including the argument that the crime of depriving an employer or the public of “honest services” is unconstitutionally vague. Skilling’s is the third case involving “honest services” to reach the Supreme Court this term.
The issue has a local echo because it was a key element of the charges that toppled Gary Rodrigues, the once-politically powerful state director of the United Public Workers, and one that prompted an increase in his sentence after conviction.
Rodrigues is currently incarcerated at the federal prison in Taft, California. He is not scheduled to be released until August 27, 2012.
Rodrigues did appeal his case to the 9th Circuit, and the issue of “honest services” was argued at length. The court rejected most of the appeal.
I haven’t found a copy of the appeal itself, but the 9th Circuit decision and discussion of the “honest services” counts can be found here. An annotated version of the judgement is also available.
Rodrigues’ attorneys argued that jury instructions had been deficient because:
(1) the instruction erroneously failed to require that the government prove a specific misrepresentation or omission made by the defendants as part of the scheme; (2) the instructions did not require that the government prove the defendants acted with an intent to deceive; and (3) the instructions told the jury that honest services included a union official’s duties under § 501 of the Labor-Management Reporting and Disclosure Act (LMRDA).
The 9th Circuit, following prior cases, ruled that such specifics were not required for a conviction.
From the discussion of the cases now before the Supreme Court, it’s this lack of specificity that is now under review.
Here are several links.
Former federal prosecutor says “honest services” law must be restrained.
Firedog Lake: Next up for activist SCOTUS: ‘Honest Services’
Maybe an attorney out there can comment on how the Supreme Court’s decision on the “honest services” issue might impact Rodrigues’ case. Could he seek an early release?
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Without meaning to be coy about retroactivity, it depends.
There’s a whole laundry list of steps to go thru in a retoactivity analysis (has a new rule been announced, is it procedural or substantive, statutory or constitutional, is the older case still pending appeal, etc.). However, without going thru all of the briefs in either case (Rodrigues/Skilling) or both, it looks like Rodrigues has an uphill slog.
“Honest services” in the Rodrigues case were defined, at least in part, with reference to existing federal law regarding the fiduciary duties of union leaders. So there may not be the vagueness issue that apparently lies at the heart of the Skilling appeal (in other words, the law was not vague as applied to Rodrigues, even if it may have been as to Skilling). Also, Rodrigues was convicted of a number of other offenses so, even if this one is subject to a collateral attack based on a possible reversal in Skilling (the direct appeals having beeen exhausted), the net result might not mean much less, or any less, time for Rodrigues.
But I’m sure others with a regular federal court practice would be much better informed.