United States v. Rybicki

RAGGI, Circuit Judge,

concurring in the judgment:

I join the court in rejecting defendants’ vagueness challenge to 18 U.S.C. § 1346 and in affirming the judgments of conviction. I write separately on the vagueness issue because I reach this conclusion via a somewhat different route from my colleagues in the majority. Specifically, while I agree that defendants’ facial vagueness challenge to § 1346 fails whether reviewed as applied pursuant to Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), or more broadly pursuant to City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), I am of the view that Morales analysis is, in fact, unwarranted in this case. Further, unlike the majority, I rely on the language of the statute in rejecting defendant’s vagueness challenge; thus, I agree with the majority’s distillation of the pre-enactment “honest services” cases insofar as that analysis reinforces the constitutional application of the statutory text to this case. I do not, however, agree with the majority’s decision to reaffirm United States v. Handakas, 286 F.3d 92 (2d Cir.2002), or with its conclusion that in cases involving self-dealing frauds, the criminal scheme must be capable of causing economic or pecuniary detriment to fall within the constitutional limits of § 1346.

I. Defendants’ Vagueness Challenge to 18 U.S.C. § 13f6 Should Be Reviewed Only as Applied to the Facts of this Case

I agree with my colleagues in the majority that the term “the intangible right to honest services,” as used in § 1346 to define a “scheme or artifice to defraud” prohibited by 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1343 (wire fraud), is not unconstitutionally vague whether subjected to as-applied analysis, see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 495 & n. 7, 102 S.Ct. 1186 (1982) (and cases cited therein), or to some broader standard of facial review, see City of Chicago v. Morales, 527 U.S. at 62, 119 S.Ct. 1849 (Stevens, J., writing for the Court in part V). That being said, I conclude that only as-applied analysis is warranted in this case. Because the majority applies both Flipside and Morales, however, while the dissent insists on the “Morales test,” district courts may conclude, in an abundance of caution, that they should engage in Morales review whenever pre*149sented with a claim of facial vagueness. This, I fear, would mark a radical and unwarranted departure from the tradition of as-applied review.

The long-standing preference for “as-applied” review of statutory vagueness challenges is “[e]mbedded in the traditional rules governing constitutional adjudication,” notably, in “the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). This principle serves the jurisprudential maxim that “as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (opinion of Holmes, J.). Thus, if a federal statute can constitutionally be applied to a particular defendant’s case, a court is obliged to construe the law to cover at least that circumstance. See generally Rust v. Sullivan, 500 U.S. 173, 190, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (noting courts’ “categorical” duty to seek “every reasonable construction ... to save a statute from unconstitutionality” (internal quotation marks omitted)).

The Supreme Court has recognized “limited exceptions” to the principle of as-applied review, but “only because of the most ‘weighty countervailing policies,’ ” notably, when a challenged statute, on its face, threatens conduct protected by the First Amendment. Parker v. Levy, 417 U.S. at 759, 94 S.Ct. 2547 (quoting Broadrick v. Oklahoma, 413 U.S. at 611, 93 S.Ct. 2908 (noting exception made for challenges to statutes implicating First Amendment rights)); see Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Even in such circumstances, however, a court must presume the validity of the statute, see Parker v. Levy, 417 U.S. at 757, 94 S.Ct. 2547, and cannot construe it “ ‘to violate the Constitution if any other possible construction remains available,’ ” Rust v. Sullivan, 500 U.S. at 190, 111 S.Ct. 1759 (quoting NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979)). As the Supreme Court has repeatedly cautioned, “[fjacial invalidation ‘is, manifestly, strong medicine’ that ‘has been employed by the Court sparingly and only as a last resort.’ ” National Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. 2908).

Thus, in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, the Supreme Court composed a variation on the theme of as-applied analysis for cases raising facial challenges to laws that “do[ ] not reach constitutionally protected conduct.” In those circumstances, a facial challenge can succeed only if the complainant demonstrates “that the law is imper-missibly vague in all of its applications.” Id. at 497, 102 S.Ct. 1186; accord id. at 507-08, 102 S.Ct. 1186 (White, J., concurring in the judgment). In United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Court reiterated this principle in a criminal case: “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” In practice, the Flipside/Salerno rule requires hypothetical analysis of “all applica*150tions” only in cases of pre-enforcement vagueness challenges. See, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 684-86 (2d Cir.1996). Where, as in this case, defendants have already been prosecuted for specific conduct under the challenged law, Flipside itself instructs that a court confronting a facial vagueness challenge should “examine the complainant’s conduct before analyzing other hypothetical applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 495, 102 S.Ct. 1186.

City of Chicago v. Morales represents no sharp break from established principles requiring statutes to be construed to uphold their constitutionality and favoring as-applied review of vagueness challenges. See 527 U.S. at 71, 119 S.Ct. 1849 (Breyer, J., concurring in part and concurring in the judgment). Our dissenting colleagues suggest that Morales identifies a broader two-prong test for vagueness review: does the law at issue (1) “fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits,” and (2) “authorize and even encourage arbitrary and discriminatory enforcement.” id. at 56, 119 S.Ct. 1849 (plurality opinion by Stevens, J., joined by Souter and Ginsburg, JJ.); id. at 64-65, 119 S.Ct. 1849 (O’Connor, J., joined by Breyer, J., concurring in part and concurring in the judgment). In fact, this simply restates the twin due process concerns that have traditionally informed vagueness analyses. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); accord Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 498, 102 S.Ct. 1186. A court confronting a vagueness challenge must still decide whether to examine these concerns only in light of the particular case at hand or whether special circumstances warrant broader facial inquiry.

In Morales, three factors — none present in this case — prompted the Supreme Court to review a Chicago loitering ordinance for facial vagueness without regard to any specific application: (1) the law implicated constitutional rights, (2) it lacked a mens rea requirement, and (3) the state supreme court had declined to construe the law narrowly to avoid reaching innocent loitering.

In the view of three justices, the Chicago loitering ordinance implicated constitutional rights because “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” City of Chicago v. Morales, 527 U.S. at 53, 119 S.Ct. 1849 (plurality opinion by Stevens, J., joined by Souter and Ginsburg, JJ.). That fact, coupled with the ordinance’s lack of an intent element, distinguished the case from Flipside: “This is not an ordinance that simply regulates business behavior and contains a scienter requirement. It is a criminal law that contains no mens rea requirement and infringes on constitutionally protected rights. When vagueness permeates the text of such a law, it is subject to facial attack.” Id. at 55, 119 S.Ct. 1849 (internal citations and quotation marks omitted).

The federal mail and wire fraud statutes are plainly not “such a law.”1 The conduct at issue — fraud—enjoys no constitutional protection, whether the deceitful scheme is aimed at a victim’s property or at his intangible right to honest services. *151See Plumley v. Massachusetts, 155 U.S. 461, 479, 15 S.Ct. 154, 39 L.Ed. 223 (1894) (“The constitution of the United States does not secure to any one the privilege of defrauding the public.”); see also Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 123 S.Ct. 1829, 1836, 155 L.Ed.2d 793 (2003) (noting that fraud is not conduct protected by the First Amendment). Further, mail and wire fraud do require proof of mens rea: a defendant must act or fail to act with “the specific intent to harm or defraud the victims of the scheme.” United States v. Walker, 191 F.3d 326, 334 (2d Cir.1999); see United States v. DiNome, 86 F.3d 277, 283 (2d Cir.1996) (“fraudulent intent is ‘[ejssential to a scheme to defraud’ ” (quoting United States v. D’Amato, 39 F.3d 1249, 1257 (2d Cir.1994)); United States v. Regan, 937 F.2d 823, 827 (2d Cir.1991) (mail and wire fraud are “specific intent crimes” requiring proof of defendant’s “ ‘conscious knowing intent to defraud’ ” (quoting United States v. Kyle, 257 F.2d 559, 564 (2d Cir.1958)).

My dissenting colleagues suggest that these distinctions are of no import because three other justices in Morales — Justices O’Connor, Kennedy, and Breyer — made no reference to constitutional rights or an intent requirement while concurring in holding the Chicago ordinance facially vague. See dissent at 157. The dissent concludes that “[tjhe only proposition attracting a majority in Morales was that a criminal statute that ‘reach[esj a substantial amount of innocent conduct’ and thereby fails to establish ‘minimal guidelines to govern law enforcement’ is, on its face, unconstitutionally vague.” (emphasis in original).

Identifying “majority” views among the four opinions of the six justices who ruled the Chicago ordinance facially invalid is sometimes a difficult task. I agree that the threat to innocent conduct — whether or not specifically protected by the Constitution — was a critical issue in Morales, but I understand this concern to have been inextricably linked to the law’s failure to require proof of harmful intent. Indeed, the six justices in the Morales “majority” joined in concluding that the vagueness challenge in that case would have failed if the Chicago ordinance had been limited “to loitering that had an apparently harmful purpose.” City of Chicago v. Morales, 527 U.S. at 62, 119 S.Ct. 1849 (Stevens, J., writing for the Court in part V); see also id. at 67, 119 S.Ct. 1849 (O’Connor, J., concurring in part and concurring in the judgment) (emphasizing that “the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a ‘harmful purpose’ ”).2 Their conclusion accords with the established “doctrine that a scienter argument may save a statute which might otherwise have to be condemned for vagueness.” United States v. Curcio, 712 F.2d 1532, 1543 (2d Cir.1983) (Friendly, J.); cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (and cases cited therein) (recognizing that “the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea ”).

In Morales, Justice O’Connor offered examples of how the loitering ordinance could be construed to include an intent requirement, thereby eliminating vagueness concerns. See City of Chicago v. Morales, 527 U.S. at 68, 119 S.Ct. 1849 (O’Connor, J., concurring in part and con*152curring in the judgment) (“The term ‘loiter’ might possibly be construed in a more limited fashion to mean ‘to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.’ ”). The difficulty, as the six justices recognized, was that the Illinois Supreme Court had expressly declined to limit the statute in this way, see id. at 50-51, 119 S.Ct. 1849 (Stevens, J., writing for the Court in part II), and the United States Supreme Court was bound by that interpretation of state law, see id. at 61, 119 S.Ct. 1849 (Stevens, J., writing for the Court at part V); id. at 68, 119 S.Ct. 1849 (O’Connor, J., concurring in part and concurring in the judgment) (questioning state court interpretation of ordinance while recognizing its binding effect); see also id. at 69, 119 S.Ct. 1849 (Kennedy, J., concurring in part and concurring in the judgment); id. at 73, 119 S.Ct. 1849 (Breyer, J., concurring in part and concurring in the judgment). Because the Supreme Court was thus powerless to construe the ordinance more narrowly as applied to any case, a majority concluded that it was obliged to declare the law unconstitutionally vague in all applications. See id. at 61 & n. 31, 119 S.Ct. 1849 (Stevens, J., writing for the Court in part V); see also id. at 68, 119 S.Ct. 1849 (O’Connor, J., concurring in part and concurring in the judgment); id. at 71, 119 S.Ct. 1849 (Breyer, J., concurring in part and concurring in the judgment).

This case plainly differs from Morales in each of the three respects relevant to the Court’s decision to conduct facial review without regard to specific application. First, as already noted, defendants can claim no constitutional protection for fraudulent conduct. Second, whatever debates there might be about the parameters of the “right to honest services” in a variety of imaginative scenarios, the federal fraud statutes, unlike the Chicago loitering ordinance, simply do not threaten “innocent conduct.” No person can be guilty of fraud unless he specifically intends some harm to his victim. See United States v. Walker, 191 F.3d at 335; United States v. DiNome, 86 F.3d at 283; United States v. D’Amato, 39 F.3d at 1257. Finally, because defendants’ vagueness challenge is to a federal statute, no state court ruling limits this court’s ability, or its obligation, to construe the challenged law as necessary to ensure due process while preserving to the maximum extent possible the statute’s effectiveness. See Rust v. Sullivan, 500 U.S. at 190, 111 S.Ct. 1759; United States v. Harriss, 347 U.S. 612, 623, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Under these circumstances, there is no reason to review § 1346 for vagueness except as applied to the facts of defendants’ case.

II. The Language of 18 U.S.C. § 131*6 Can Be Construed to Give Adequate Notice of the Conduct Proscribed

In evaluating defendants’ vagueness challenge, my colleagues in both the majority and the dissent conclude, with almost no discussion, that the text of § 1346 offers little assistance. Majority at 135; Dissent at 158.1 disagree.

The task of interpreting any statute must begin with its language. See Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003). Although federal law does not specifically define the phrase “the intangible right to honest services,” the words are not technical; their common meanings are well understood. See generally Mississippi v. Louisiana, 506 U.S. 73, 78, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992) (relying upon plain meaning to define the word “exclusive”); Muscarello v. United States, 524 *153U.S. 125, 128-32, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (looking to ordinary English usage to discern meaning of “carry” as used in 18 U.S.C. § 924(c)(1)).

Black’s Law Dictionary defines a “right” as “[ajlegally enforceable claim that another will do or will not do a given act.” Black’s Law Dictionary at 1322 (7th ed.1999). The same source defines “service” as “[a]n intangible commodity in the form of human effort, such as labor, skill, or advice.” Id. at 1372. The word “honest” is commonly understood as “free from fraud or deception.” Webster’s Third New International Dictionary 1086 (1986); see also 7 Oxford English Dictionary 349 (2d ed.1989) (defining “honest” as “free from fraud”); Ballantine’s Law Dictionary 566 (3d ed.1969) (defining “honest” as “descriptive of one who does not lie or cheat”). In sum, “the intangible right to honest services” can fairly be understood to mean a legally enforceable claim to have another person provide labor, skill, or advice without fraud or deception. I am confident that the public and the police can more readily apprehend this concept than a host of others that define criminal conduct, for example, the concept of vertical and horizontal relatedness that defines a “pattern” of racketeering. See Bingham v. Zolt, 66 F.3d 553, 566 (2d Cir.1995) (collecting-cases rejecting vagueness challenges to “pattern” and “enterprise” elements of racketeering).

Indeed, implicit in the plain meaning of § 1346 are two limiting principles that serve notice on the public and guide the police as to the conduct proscribed. First, the law — whether federal or state, civil or criminal, tort or contract — must recognize an enforceable right to the services at issue. Second, Congress’s decision to qualify the word “services” by the modifier “honest” indicates that not every breach of an employment contract or service agreement will support a federal fraud prosecution. What distinguishes “honest services” from the general provision of labor, skill, or advice is that the value of the particular services at issue largely depends on their being performed honestly, that is, without fraud or deception. An employer’s right to the honest services of employees entrusted to disburse assets' — as in the case of the insurance adjusters in the fraud scheme now before us — is an obvious example of conduct falling within the parameters of § 1346.

Further, when § 1346 is read together with § 1341 and § 1343, three additional elements define and limit the conduct proscribed: a defendant must specifically intend to harm or injure the victim of the fraud scheme; he must misrepresent or conceal a material fact, see Neder v. United States, 527 U.S. 1, 22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); and the mails or wires must be used to further the scheme. Together, the five factors sufficed both to alert defendants that their scheme to corrupt insurance adjusters was prohibited by law and to ensure against arbitrary prosecution of the innocent. Where the plain meaning of a statute thus serves adequate notice of the conduct proscribed, the propriety of its broad sweep is a matter for policy debate. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 483-84, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992).3

*154III. The Majority’s Decision to Reaffirm Handakas and Require Proof of Detriment in Self-Dealing Cases

The pre-enactment history of § 1346 detailed by the majority reinforces the plain meaning of the statutory text, but I am not convinced that it requires us to reaffirm United States v. Handakas, 286 F.3d 92, or to conclude, in this case, in which the statute is applied only to a kickback scheme, that “detriment” must be proved in other cases involving self-dealing frauds.

Section 1346 was enacted in response to McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), in which the Supreme Court overruled decades of decisions by circuit courts, including this one, holding that the mail and wire fraud statutes prohibited schemes to defraud individuals of their rights to honest services, see id. at 362-64 & nn. 1-4, 107 S.Ct. 2875 (Stevens, J., dissenting) (collecting cases).4 As the majority observes, Congress’s use of the definite article to extend fraud protection to “the intangible right to honest services” indicates its intent to restore the right as it had been applied to a host of fraud schemes prior to McNally. See majority at 137-138; see also McNally v. United States, 483 U.S. at 376, 107 S.Ct. 2875 (Stevens, J., dissenting) (observing that McNally’s decision to limit mail and wire fraud to property crimes stands virtually alone “against a tide of well-considered opinions issued by state or federal courts,” which “correctly understood the intent of the Congress that enacted [the federal fraud] statute[s]”).

Surveying the considerable body of pre-McNally case law, the majority identifies certain private sector relationships and circumstances where § 1346 clearly applies. Those cases include “a scheme or artifice to use the mails or wires to enable an officer or employee of a private entity (or a person in a relationship that gives rise to a duty of loyalty comparable to that owed by employees to employers) purporting to act for and in the interests of his or her employer (or of the person to whom the duty is owed) secretly to act in his or her own interests instead, accompanied by a material misrepresentation made or omission of information disclosed to the employer.” Majority at 126-127. I agree that these types of cases fit comfortably within the plain meaning of § 1346, but I do not understand the court to be limiting *155the statute’s reach to the identified categories.

While a particular relationship may shed light on whether one person owes another honest services, the language of § 1346 indicates that the critical factor-is the type of service at issue, not the relationship of the parties. See United States v. Sancho, 157 F.3d 918, 921 (2d Cir.1998) (per curiam) (holding that what matters is not a fiduciary relationship between the parties, but whether a duty comes within the statutory “right of honest services”). Today’s case presents us with honest services fraud in the context of an employer-employee relationship. But a future case may require us to consider whether there is any principled reason to distinguish between an employee and an arms-length contractor when they engage in identical fraud schemes with the specific intent to deprive a victim of services whose value depends upon honest performance — for example, providing a due diligence report, a compliance certification, or an environmental assessment. To the extent United States v. Handakas, 286 F.3d at 102-13, may be interpreted to foreclose the prosecution of a contractor for fraudulently depriving a person of such honest services, I do not join the majority in re-affirming that decision. Rather, I agree with Judge Feinberg that § 1346 was not unconstitutionally vague as applied to the deceit in that case. Id. at 115-17 (Feinberg, J., dissenting in part and concurring in part).

Neither do I join the majority in pronouncing that “[i]n the self-dealing context,” a § 1346 fraud “must ... cause, or at least be capable of causing, some detriment — perhaps some economic or pecuniary detriment — to the employer.” Majority at 142. The case before us involves only a kickback scheme; the court should await a self-dealing case before deciding whether detrim'ent is necessary to avoid statutory vagueness. United States v. Lemire, 720 F.2d 1327, 1337 (D.C.Cir.1983), cited by the majority to support a “detriment” requirement, in fact suggests that the crucial determination with respect to detriment is whether a defendant “might reasonably have contemplated” concrete harm to his employer from his failure to disclose self-dealing, a question more of intent than of capability. This distinction could well be significant in a self-dealing case involving an undercover victim. Lemire further explains that proof of. possible detriment serves to ensure the materiality of a self-dealing defendant’s misrepresentations or omissions. See id. Because materiality is necessarily fact specific, it would be premature to assume that the element can never be proved beyond a reasonable doubt except by evidence of detriment.

Retaining flexibility to recognize that other schemes, not precisely fitting within the models identified by the majority today, could constitute honest services fraud does not establish the vagueness of § 1346. Rather, it acknowledges the reality of fraud, a crime of extraordinary variety, limited only by human imagination. See, e.g., United States v. Altman, 48 F.3d 96, 102 (2d Cir.1995) (holding that fraud needs no definition: “it is as old as falsehood and as versable as human ingenuity” (internal quotation marks and citations omitted)).

Whatever other schemes may be prosecuted as honest services frauds in future cases, there is no question that the plain language of § 1346, read together with § 1341 and § 1343, is not unconstitutionally vague as applied to the defendants in this case. Accordingly, I concur in affirming the judgment of conviction.

. Although defendants' vagueness challenge is specifically to § 1346, because that statute only defines conduct proscribed by § 1341 and § 1343, a court must consider all elements of mail and wire fraud in determining whether the public and the police are given fair notice of what constitutes the crime.

. Because the federal fraud statutes only reach deceitful schemes specifically intended to cause harm, they survive a facial vagueness challenge even under the Morales standard of review.

. To the extent our dissenting colleagues also sound a federalism alarm to § 1346, warning that application of the statute to the public sector "invites federal prosecutors to police honesty in the corridors of state government,” dissent at 164, I am not persuaded that this threatens the Republic. Because § 1346 is not here applied to a public sector fraud, however, I leave further debate on this issue for another day.

Nevertheless, I do question whether the vagueness challenge before us has anything to *154do with federalism. If courts were to hold "the intangible right to honest services” too vague to satisfy due process in a federal statute, they would presumably be obliged to strike down the same language in state statutes. See, e.g., Ariz.Rev.Stat. § 13-2310(E) (2003) (defining "scheme or artifice to defraud” to include "a scheme or artifice to deprive a person of the intangible right of honest services”); 720 Ill. Comp. Stat. 5/17— 24(e)(l)(2003) (defining "scheme or artifice to defraud” to include schemes "to deprive another of the intangible right to honest services”); 720 Ill. Comp. Stat. 5/16H-25(2)(2003) (same, but in the financial institution context); Md. Ann.Code § 8-509 (2002) (making it a crime knowingly and willfully “to defraud a State health plan of the right to honest services”); R.I. Gen. Laws § 19-9-29 (2003) (defining bank fraud to include "a scheme or artifice to deprive another of the intangible right to honest services”). In short, a vagueness ruling would mean no sovereignty, state or federal, could prosecute "honest services” frauds.

To the extent footnote 10 of the majority opinion somewhat cryptically alludes to a federalism argument that "may be more powerful than vagueness alone,” I await the clear presentation of such an argument to a particular case before expressing any view as to its availability, let alone its merits.

. Neither in McNally nor in the "honest services” cases that preceded it does a court appear to have ruled that the concept is too vague to permit constitutional application.