Michael Kail v. United States

In Skilling v. United States, 561 U.S. 358 (2010), this Court held that 18 U.S.C. § 1346 covered only bribery and kickback schemes, expressly excluding undisclosed selfdealing from the statute’s reach. In the decision below, the Ninth Circuit affirmed Petitioner’s honest-services fraud conviction under jury instructions that permitted conviction for receiving “a thing or things of value” in exchange for “services by a fiduciary”—language that encompasses both lawful self-dealing as well as bribes and kickbacks. The Eleventh Circuit, however, reversed a conviction under nearly identical instructions, holding that the failure to distinguish between kickbacks and self-dealing invited the jury to convict on conduct that Skilling placed outside § 1346’s reach. United States v. Aunspaugh, 792 F.3d 1302, 1309-10 (11th Cir. 2015). The question presented, therefore, is whether honestservices fraud jury instructions must distinguish criminal kickbacks from lawful self-dealing, or whether they may permit conviction for receiving “a thing or things of value” in exchange for “services by a fiduciary” without requiring the jury to find that payments were made to induce favorable treatment rather than to compensate legitimate work.