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This month, the Supreme Court issued two noteworthy opinions limiting the scope of federal fraud statutes, specifically those that prohibit “honest services fraud.” Under 18 USC 1346, a “scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.”

In Ciminelli v. United States, the Court unanimously invalidated the conviction of a construction company owner who had engaged in bid rigging for government contracts, which deprived the government of “potentially valuable economic information necessary to make discretionary economic decisions.” As a result, the trial court instructed the jury that “property” as defined under the fraud statute, included “intangible interests such as the right to control the use of one’s assets.”

The Court held that this was error, as the right to such intangible but “valuable economic information” was not a “traditional property interest” protected by the statute. The Court’s holding will likely be used to challenge future fraud prosecutions involving intangible losses.

In Percoco v. United States, the Court invalidated another defendant’s conviction, this time that of a former official in the Governor’s office in New York who, while on hiatus from his official role to assist in the governor’s campaign, accepted money to advise a real estate development company in its dealings with a state agency. Specifically, Percoco had lobbied internally to urge other officials to ease certain work requirements for the company, which received government funding.

The Court held that the trial court erred in instructing the jury that it could convict Percoco of honest services fraud, even while not serving as a public official, if it found that he “dominated and controlled any government business” and that “people working in the government actually relied on him because of a special relationship he had with the government.” The Court held these instructions were too vague and swept too broadly. However, the Court rejected the defendant’s argument that a private citizen cannot be convicted of depriving the public of honest services, reserving the question whether some private citizens could have the “necessary fiduciary duty to the public.”

ast month, the Department of Justice released its “First Step Act Annual Report,” summarizing efforts to implement the sentencing reforms enacted under the First Step Act of 2018.he report covers the BOP’s implementation of its recidivism risk assessment (the controversial PATTERN score, which allegedly is racially biased), its implementation of recidivism-reducing programs that allow inmates to earn time off their sentences, the status of prison work programs, and other important reforms under the FSA.

The report also provides brief summaries of some of the most significant steps taken since the last report issued in April 2022 Among those developments, the BOP reports that it has finalized its policy for awarding “earned time credits” and has been awarding those credits as quickly as possible. The BOP also reports that it has expanded the use of home confinement for eligible inmates, wherein they allow inmates to serve the last months of their sentence in home confinement.

Yesterday, the U.S. Sentencing Commission issued a memorandum regarding the amendments to the U.S. Sentencing Guidelines and whether two amendments should apply retroactively– 1) the amendment that reduces the potential criminal history points assessed for defendants who commit their offense while under another sentence, and 2) the amendment providing a two-level downward adjustment for defendants with zero criminal history points.

In its conclusion, the Commission estimates that 11,49 offenders in BOP custody would have faced a lower sentencing range under the new amendment reducing the potential criminal history points for defendants who committed their offense while under another sentence. The average sentence reduction, based on those potential lower Guidelines ranges, would be 11.7, and 2,000 inmates would be eligible for release by November 1, 2023, when the amendments are slated to go into effect. Additionally, the Commission estimates that 7,272 inmates in BOP custody would have a lower Guidelines range if re-sentenced under the amendment providing a 2-level downward departure for having zero criminal history points, with an average reduction of 17.6%. An estimated 1,200 offenders would be eligible for release by November 1, 2023 if the amendment is made retroactive.