Aunspaugh: Erroneous "Honest Services" Jury Instruction

In U.S. v. Aunspaugh, No. 12-13132 (July 8, 2015), the Court reversed convictions for mail fraud because of erroneous jury instructions on what constitutes “honest services.” The case involved an Electric Cooperative whose general manager steered contracts to a company that hired one of the Cooperative’s employees to do the work, and made secret payments to the general manager for this arrangement. The Court found that the evidence supported a finding of a “kickback,” and not a merely egregious conflict of interest, for purposes of the “honest services” fraud statute. However, the jury instructions erroneously did not require the jury to acquit on a finding that the scheme involved only self-dealing, not kickbacks. The Court therefore reversed the conviction, even though the evidence supporting the defense theory was “weak.” Because the money laundering conviction was predicated on the honest fraud conviction, the Court vacated this conviction as well. The Court, however, affirmed the structuring transaction convictions. The Court found that a defendant cashed checks for amounts just below the reporting requirements. The Court noted that the less serious of the two structuring statutes does not require the violation of another law. In light of its vacatur of other convictions, the Court vacated the sentence on the remaining structuring count, noting that the sentence “may not have been the same” without the other convictions.