ROBERT SORICH, TIMOTHY McCARTHY, AND PATRICK SLATTERY
v.
UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 08–410. Decided February 23, 2009

The petition for a writ of certiorari is denied.

McNally v. United States, 483 U. S. 350 (1987), this Court held that while “[t]he mail fraud statute clearly protects property rights, . . . [it] does not refer to the intangible right of the citizenry to good government.” Id. , at 356.

 

In 

That holding invalidated the theory that official corruption and misconduct, by depriving citizens of their”intangible right” to the honest and impartial services of government, constituted fraud. Although all of the Federal Courts of Appeals had accepted the theory, see id., at 364 (STEVENS, J., dissenting), we declined to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in settingstandards of disclosure and good government for local and state officials.” Id., at 360 (majority opinion). “If Congress desires to go further,” we said, “it must speak more clearly than it has.” Ibid.

Congress spoke shortly thereafter. “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” 18 U. S. C. §1346.Whether that terse amendment qualifies as speaking “more clearly” or in any way lessens the vagueness andfederalism concerns that produced this Court’s decision in

 

 

 

 

 

 

 

 

 

 

McNally

Though it consists of only 28 words, the statute has been

 

 

 

 

 

 

 

 

 

 

invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries. Courts have upheld convictions of a local housing official who failed to disclose a conflict of interest, United States v. Hasner, 340 F. 3d 1261, 1271 (CA11 2003) (per curiam); a businessman who attempted to pay a state legislator to exercise “informaland behind-the-scenes influence on legislation,” United States v. Potter, 463 F. 3d 9, 18 (CA1 2006); students who schemed with their professors to turn in plagiarized work, United States v. Frost, 125 F. 3d 346, 369 (CA6 1997); lawyers who made side-payments to insurance adjustersin exchange for the expedited processing of their clients’ pending claims, United States v. Rybicki

If the “honest services” theory—broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers—istaken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it willcurry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office toobtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer.Indeed, it would seemingly cover a salaried employee’sphoning in sick to go to a ball game. In many cases, moreover, the maximum penalty for violating this statute willbe added to the maximum penalty for violating 18 U. S. C. §666, a federal bribery statute, since violation of the latter requires the additional factor of the employer’s receipt of 

 

 

 

 

 

 

 

 

 

 

To avoid some of these extreme results, the Courts of Appeals have spent two decades attempting to cabin thebreadth of §1346 through a variety of limiting principles. No consensus has emerged. The Fifth Circuit has held that the statute criminalizes only a deprivation of servicesthat is unlawful under state law,

 

 

 

 

 

 

 

 

 

 

United States v. Brumley, 116 F. 3d 728, 735 (1997) (en banc), but other courtshave not agreed, see United States v. Martin, 195 F. 3d 961, 966 (CA7 1999) (Brumley “is contrary to the law inthis circuit . . . and in the other circuits to have addressed the question”). The Seventh Circuit has construed the statute to prohibit only the abuse of position “for private gain,” United States v. Bloom, 149 F. 3d 649, 655 (1998),but other Circuits maintain that gain is not an element of the crime at all, e.g., United States v. Panarella, 277 F. 3d 678, 692 (CA3 2002). Courts have expressed frustration at the lack of any “simple formula specific enough to giveclear cut answers to borderline problems.” United States v. Urciuoli

It is practically gospel in the lower courts that the statute “does not encompass every instance of official misconduct,”

 

 

 

 

 

 

 

 

 

 

United States v. Sawyer, 85 F. 3d 713, 725 (CA1 1996). The Tenth Circuit has confidently proclaimed that the statute is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing,” United States v. Welch, 327 F. 3d 1081, 1107 (CA10 2003). But why that is so, and whatprinciple it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified. Without some coherent limiting principle to define what “the intangible right of honest services” is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline

In the background of the interpretive venture remainthe two concerns voiced by this Court in

 

 

 

 

 

 

 

 

 

 

McNally. First, the prospect of federal prosecutors’ (or federal courts’)creating ethics codes and setting disclosure requirementsfor local and state officials. Is it the role of the Federal Government to define the fiduciary duties that a townalderman or school board trustee owes to his constituents? It is one thing to enact and enforce clear rules againstcertain types of corrupt behavior, e.g., 18 U. S. C. §666(a) (bribes and gratuities to public officials), but quite another to mandate a freestanding, open-ended duty to provide”honest services”—with the details to be worked out caseby-case. See generally Brown, Should Federalism Shield Corruption?—Mail Fraud, State Law and Post-Lopez

Second and relatedly, this Court has long recognized the”basic principle that a criminal statute must give fairwarning of the conduct that it makes a crime.”

 

 

 

 

 

 

 

 

 

 

Bouie v. City of Columbia, 378 U. S. 347, 350 (1964).

There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But “the notion of a commonlaw crime is utterly anathema today,” Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judgesand prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra

The present case in which certiorari is sought implicatestwo of the limiting principles that the Courts of Appeals 

 

 

 

 

 

 

 

 

 

 

have debated—whether the crime of deprivation of “honest services” requires a predicate violation of state law, and whether it requires the defendant’s acquisition of somesort of private gain. The jury was instructed that petitioners, who were employed by the city of Chicago, wereobliged, “[a]s part of the honest services they owed the City and the people of the City of Chicago,” to abide by alaundry list of “laws, decrees, and policies,” including a 1983 civil consent decree entered into by the city whichbarred patronage hiring for some city jobs. App. to Pet. forCert. 137–140. The Seventh Circuit approved the instruction, again rejecting the Fifth Circuit’s violation-of-statelaw principle. “It may well be,” the court said, “thatmerely by virtue of being public officials the defendants inherently owed the public a fiduciary duty to dischargetheir offices in the public’s best interest.” 523 F. 3d, at 712. And though petitioners received no direct personal benefit from the patronage they doled out on behalf oftheir political masters, the Seventh Circuit found it sufficient that the patronage appointees—who were not charged in the scheme—accrued private gain. Id.

Finally, in addition to presenting two of the principaldevices the Courts of Appeals have used in an effort to limit §1346, the case also squarely presents the issue of itsconstitutionality. The Court of Appeals rebuffed petitioners’ argument that if §1346 really criminalizes all conduct that is not “in the public’s best interest” and that benefits

 

 

 

 

 

 

 

 

 

 

someone, it is void for vagueness. The court cited two prior Circuit decisions which, it said, “provided sufficientnotice.” Id.

It may be true that petitioners here, like the defendantsin other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.”

 

 

 

 

 

 

 

 

 

 

Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding 

 

 

ORIGINAL PROCEEDING FROM SCHLEICHER COUNTY

M E M O R A N D U M O P I N I O N
PER CURIAM

This original mandamus proceeding involves the temporary custody of a number of
children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas.1 The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that
there was immediate danger to the physical health or safety of the children.

Relators seek a writ of mandamus requiring the district court to vacate its temporary
orders in which it named the Department the temporary sole managing conservator of their children. Because temporary orders in a suit affecting a parent-child relationship are not subject to interlocutory appeal under the family code, mandamus review is appropriate. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Vernor, 94 S.W.3d 201, 210 (Tex. App.—Austin 2002,orig. proceeding).

Section 262.201 provides, in relevant part, as follows:
(a) Unless the child has already been returned to the parent, managing conservator,
possessory conservator, guardian, caretaker, or custodian entitled to possession and
the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity.

Relators complain that the Department failed to meet its burden under section 262.201
of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children’s removal from their parents. Tex. Fam. Code Ann.
§ 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so.

Removing children from their homes and parents on an emergency basis before fully
litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved.

However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. Section 262.201 further requires the Department, when it has taken children into custody (b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian,caretaker, or custodian entitled to possession unless the court finds sufficient
evidence to satisfy a person of ordinary prudence and caution that:

(1) there was a danger to the physical health or safety of the child
which was caused by an act or failure to act of the person entitled to
possession and for the child to remain in the home is contrary to the
welfare of the child;

(2) the urgent need for protection required the immediate removal of
the child and reasonable efforts, consistent with the circumstances
and providing for the safety of the child, were made to eliminate or
prevent the child’s removal; and

(3) reasonable efforts have been made to enable the child to return
home, but there is a substantial risk of a continuing danger if the child
is returned home.
. . . .
In determining whether there is a continuing danger to the physical health or
safety of the child, the court may consider whether the household to which the child
would be returned includes a person who:

(1) has abused or neglected another child in a manner that caused
serious injury to or the death of the other child; or

(2) has sexually abused another child.
Tex. Fam. Code Ann. § 262.201 (West Supp. 2007).
In this case, the Department relied on the following evidence with respect to
the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:

• Interviews with investigators revealed a pattern of girls reporting that “there
was no age too young for girls to be married”;
• Twenty females living at the ranch had become pregnant between the ages of
thirteen and seventeen;
• Five of the twenty females identified as having become pregnant between the
ages of thirteen and seventeen are alleged to be minors, the other fifteen are
now adults;
• Of the five minors who became pregnant, four are seventeen and one is
sixteen, and all five are alleged to have become pregnant at the age of fifteen
or sixteen;
• The Department’s lead investigator was of the opinion that due to the
“pervasive belief system� of the FLDS, the male children are groomed to be
perpetrators of sexual abuse and the girls are raised to be victims of sexual
abuse;
• All 468 children were removed from the ranch under the theory that the
ranch community was “essentially one household comprised of extended
family subgroups� with a single, common belief system and there was reason
to believe that a child had been sexually abused in the ranch “household�;
• Department witnesses expressed the opinion that there is a “pervasive belief
system� among the residents of the ranch that it is acceptable for girls to
marry, engage in sex, and bear children as soon as they reach puberty, and
that this “pervasive belief system� poses a danger to the children.

In addition, the record demonstrates the following facts, which are undisputed by
the Department:

• The only danger to the male children or the female children who had not
reached puberty identified by the Department was the Department’s assertion
that the “pervasive belief system� of the FLDS community groomed the
males to be perpetrators of sexual abuse later in life and taught the girls to
submit to sexual abuse after reaching puberty;
• There was no evidence that the male children, or the female children who had
not reached puberty, were victims of sexual or other physical abuse or in
danger of being victims of sexual or other physical abuse;
• While there was evidence that twenty females had become pregnant between
the ages of thirteen and seventeen, there was no evidence regarding the
marital status of these girls when they became pregnant or the circumstances
under which they became pregnant other than the general allegation that the
girls were living in an FLDS community with a belief system that condoned
underage marriage and sex;
• There was no evidence that any of the female children other than the five
identified as having become pregnant between the ages of fifteen and
seventeen were victims or potential victims of sexual or other physical abuse;
• With the exception of the five female children identified as having become
pregnant between the ages of fifteen and seventeen, there was no evidence of
any physical abuse or harm to any other child;
• The Relators have identified their children among the 468 taken into custody
by the Department, and none of the Relators’ children are among the five the
Department has identified as being pregnant minors; and
• The Department conceded at the hearing that teenage pregnancy, by itself, is
not a reason to remove children from their home and parents, but took the
position that immediate removal was necessary in this case because “there is
a mindset that even the young girls report that they will marry at whatever
age, and that it’s the highest blessing they can have to have children.�

The Department argues that the fact that there are five minor females living in the
ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent.

The Department also argues that the “household� to which the
children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a “household.� See id. § 262.201(d)(2).

The Department failed to carry its burden with respect to the requirements of section
262.201(b). Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety.

The Department’s witnesses conceded that there are differences of opinion among the
FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.

The notion that the entire ranch community constitutes a “household� as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence.

Nor did the Department offer any evidence that any of Relators’ pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a “pervasive system of belief� that condones polygamous marriage and underage females having children.

The existence of the FLDS belief system as described by the Department’s witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger.

The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger.

The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators’ children are pubescent females and whether there is any risk to them other than that they live in a community where there is a “pervasive belief system� that condones marriage and childrearing
as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators’
children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators.

There is no evidence that any of the five pregnant minors live in the same household as the Relators’ children. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a “household� under section 262.201.

The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.
There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators’children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a “pervasive belief system� that condones underage
marriage and underage pregnancy.

Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims
of sexual abuse as the Department contends,11 there is no evidence that this danger is “immediate� or “urgent� as contemplated by section 262.201 with respect to every child in the community.

The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b).

Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior
to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to
eliminate or prevent the removal of any of Relators’ children.