Hernan Lopez v. United States, et al.

The so-called honest-services statute, 18 U.S.C. §1346, is a notoriously vague statute that has required this Court’s repeated intervention to rein in ambitious prosecutors. At least four Justices have concluded that the statute is unconstitutionally vague. A majority has worked creatively to preserve a narrow constitutional core of prosecutions, but the Second Circuit has not gotten the message. In Percoco v. United States, 598 U.S. 319 (2023), the Court reversed the Second Circuit and emphasized that the core was indeed narrow and requires more than just a “smattering” of decisions predating McNally v. United States, 483 U.S. 350 (1987). The district court here took the lesson of Percoco to heart and dismissed this novel and misguided effort to use §1346 to reach foreign commercial bribery—conduct that no federal criminal statute that is actually focused on bribery at home or abroad reaches. The Second Circuit, by contrast, reversed and made clear that it would continue to apply its pre-Percoco case law unless and until instructed otherwise (again) by this Court. This Court should provide the necessary instruction either by making clear that §1346 does not reach foreign commercial bribery or by abandoning the judicial effort to try to save §1346 from vagueness altogether. The questions presented are:

1. Whether the honest-services statute criminalizes foreign commercial bribery.

2. Whether the honest-services statute is unconstitutionally vague.