Black, et al. v. U.S.

1. Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed.

2. Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.

NCLC urged the Supreme Court to grant review of this case to decide whether the "honest services" prong of the federal mail fraud statute is unconstitutionally vague. A jury acquitted the defendants, former executives at a newspaper company, of charges that they stole money from the firm by diverting the company's money to themselves. However, the jury convicted the defendants of federal mail fraud for depriving the company and its shareholders of the "intangible right of honest services," even though there is no indication that the jury believed the defendants caused the company any economic harm. In its amicus brief, NCLC argued the "honest services" statute is too vague for American companies and executives to predict what conduct is prohibited, and that the Constitution entitles them to fair notice of prohibited conduct. NCLC also explained that unpredictable prosecutions under the statute deter legitimate business dealings. This case could have implications in the civil RICO context as well, where businesses face treble damages.

In light of its decision in Skilling v. U.S., the Supreme Court vacated and remanded a judgment against former newspaper executives accused of diverting company money to themselves.

Amicus brief on the merits filed 8/6/09. Moot court held 11/24/09. Oral argument held 12/8/09. Decided 6/24/10.