![handle is hein.journals/valewenb63 and id is 1 raw text is:
With Bases Loaded,
Alito Hits a Home Run
Ellen S. Podgor*
One thing is clear: the authors who are writing in this En Banc
discussion forum about the honest-services statute all strongly believe
that § 1346 is vague. Attorneys Abbe David Lowell, Christopher D.
Man, and Paul M. Thompson state [i]n our view the statute is
unconstitutionally vague.' Attorney Tim O'Toole states that [t]he
only fair and workable solution is for the Court to strike down the
statute and force Congress back to the drawing board.2 One only
needs to look at the first sentence in Professor Julie R. O'Sullivan's
essay to understand her position on § 1346 and vagueness. She states,
[i]t is my firm belief that if any statute is unconstitutionally vague, it
is 18 U.S.C. § 1346, at least as applied to cases in which employees of
private entities are prosecuted for depriving their employers of a right
to their honest services ('private cases').3
But something monumental happened at the March 1, 2010,
oral argument in the Jeffrey Skilling case that went unnoticed by all
the authors, including myself. Chief Justice Roberts and Justices
Sotomayor, Ginsburg, Breyer, Scalia, and Kennedy were peppering
Deputy Solicitor General Dreeben with questions regarding honest
services and § 1346. Justice Alito, known for being the Court's biggest
baseball fan,4 then came up to bat. He asked a single question, but
the most telling question for consideration of whether § 1346 is vague.
Justice Alito asked, [w]ere there any pre-McNally cases that
involved a situation like this, where the benefit to the employee was in
* Professor of Law, Stetson University College of Law
1. Abbe David Lowell et al., Not Every Wrong is a Crime: The Legal and Practical
Problems with the Federal Honest-Services Statute, 63 VAND. L. REV. EN BANC 11 (2010).
2. Timothy P. O'Toole, The Honest-Services Surplus: Why There's No Need (or Place) for a
Federal Law Prohibiting Criminal-esque Conduct in the Nature of Bribes and Kickbacks, 63
VAND. L. REV. EN BANC 49 (2010).
3. Julie R. O'Sullivan, Honest-Services Fraud: A (Vague) Threat to Millions of Blissfully
Unaware (and Non-Culpable) American Workers, VAND. L. REV. EN BANC 23 (2010).
4. See Posting of Tony Mauro to The BLT: The Blog of LegalTimes, http://legaltimes
.typepad.com/blt/2008/06/alito-on-baseba.html (June 2, 2008, 16:52 EST).
73](ViewImageLocal?handle=hein.journals/valewenb63&div=1&collection=&method=preview&ext=.png&size=3)
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