Catholic University Law Review


Brian H. Connor


From 1946 to 1987, the federal mail fraud statute, 18 U.S.C. § 1341, was a powerful tool for the prosecution of political corruption. In a line of decisions beginning with the Fifth Circuit’s in Shushan v. United States, and ending with the Supreme Court’s decision in McNally v. United States, courts upheld the use of the statute to prosecute officials who had deprived the public of its “intangible right” to the official’s “honest services.” In 1988, after the Supreme Court held this theory unconstitutionally vague in McNally, Congress enacted § 1346, intending to restore “honest services fraud” doctrine to its pre-McNally expanse. Yet in the 2010 case of Skilling v. United States, the Supreme Court narrowed 18 U.S.C. § 1346 to prohibit only the “core” of honest services fraud: bribery and kickback schemes. This Comment argues that, in reining in honest services fraud in the Skilling decision to bribery and kickbacks, the Supreme Court left open a fundamental question at the heart of honest services fraud: whether and to what extent prosecution under that law requires proof of a “quid pro quo.” This Comment argues that the Third Circuit’s “stream of benefits” theory of bribery strikes the right balance between the vagueness problems that the court addressed in McNally and Skilling, and Congress’s intent to cast a wide net to fight political corruption in enacting § 1346.