The opinion
(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SKILLING v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 08–1394. Argued March 1, 2010—Decided June 24, 2010
Founded in 1985, Enron Corporation grew from its headquarters in
Houston, Texas, into the seventh highest-revenue-grossing company
in America. Petitioner Jeffrey Skilling, a longtime Enron officer, was
Enron’s chief executive officer from February until August 2001,
when he resigned. Less than four months later, Enron crashed into
bankruptcy, and its stock plummeted in value. After an investigation
uncovered an elaborate conspiracy to prop up Enron’s stock prices by
overstating the company’s financial well-being, the Government
prosecuted dozens of Enron employees who participated in the
scheme. In time, the Government worked its way up the chain of
command, indicting Skilling and two other top Enron executives.
These three defendants, the indictment charged, engaged in a scheme
to deceive investors about Enron’s true financial performance by ma
nipulating its publicly reported financial results and making false
and misleading statements. Count 1 of the indictment charged Skill
ing with, inter alia, conspiracy to commit “honest-services” wire
fraud, 18 U. S. C. §§371, 1343, 1346, by depriving Enron and its
shareholders of the intangible right of his honest services. Skilling
was also charged with over 25 substantive counts of securities fraud,
wire fraud, making false representations to Enron’s auditors, and in
sider trading.
In November 2004, Skilling moved for a change of venue, contend
ing that hostility toward him in Houston, coupled with extensive pre
trial publicity, had poisoned potential jurors. He submitted hundreds
of news reports detailing Enron’s downfall, as well as affidavits from
experts he engaged portraying community attitudes in Houston in
comparison to other potential venues. The District Court denied the
motion, concluding that pretrial publicity did not warrant a presump
2 SKILLING v. UNITED STATES
Syllabus
tion that Skilling would be unable to obtain a fair trial in Houston.
Despite incidents of intemperate commentary, the court observed,
media coverage, on the whole, had been objective and unemotional,
and the facts of the case were neither heinous nor sensational. More
over, the court asserted, effective voir dire would detect juror bias.
In the months before the trial, the court asked the parties for ques
tions it might use to screen prospective jurors. Rejecting the Gov
ernment’s sparer inquiries in favor of Skilling’s more probing and
specific questions, the court converted Skilling’s submission, with
slight modifications, into a 77-question, 14-page document. The
questionnaire asked prospective jurors about their sources of news
and exposure to Enron-related publicity, beliefs concerning Enron
and what caused its collapse, opinions regarding the defendants and
their possible guilt or innocence, and relationships to the company
and to anyone affected by its demise. The court then mailed the
questionnaire to 400 prospective jurors and received responses from
nearly all of them. It granted hardship exemptions to about 90 indi
viduals, and the parties, with the court’s approval, further winnowed
the pool by excusing another 119 for cause, hardship, or physical dis
ability. The parties agreed to exclude, in particular, every prospec
tive juror who said that a preexisting opinion about Enron or the de
fendants would prevent her from being impartial.
In December 2005, three weeks before the trial date, one of Skill
ing’s co-defendants, Richard Causey, pleaded guilty. Skilling re
newed his change-of-venue motion, arguing that the juror question
naires revealed pervasive bias and that news accounts of Causey’s
guilty plea further tainted the jury pool. The court again declined to
move the trial, ruling that the questionnaires and voir dire provided
safeguards adequate to ensure an impartial jury. The court also de
nied Skilling’s request for attorney-led voir dire on the ground that
potential jurors were more forthcoming with judges than with law
yers. But the court promised to give counsel an opportunity to ask
follow-up questions, agreed that venire members should be examined
individually about pretrial publicity, and allotted the defendants
jointly two extra peremptory challenges.
Voir dire began in January 2006. After questioning the venire as a
group, the court examined prospective jurors individually, asking
each about her exposure to Enron-related news, the content of any
stories that stood out in her mind, and any questionnaire answers
that raised a red flag signaling possible bias. The court then permit
ted each side to pose follow-up questions and ruled on the parties’
challenges for cause. Ultimately, the court qualified 38 prospective
jurors, a number sufficient, allowing for peremptory challenges, to
empanel 12 jurors and 4 alternates. After a 4-month trial, the jury
Cite as: 561 U. S. ____ (2010) 3
Syllabus
found Skilling guilty of 19 counts, including the honest-services-fraud
conspiracy charge, and not guilty of 9 insider-trading counts.
On appeal, Skilling raised two arguments relevant here. First, he
contended that pretrial publicity and community prejudice prevented
him from obtaining a fair trial. Second, he alleged that the jury im
properly convicted him of conspiracy to commit honest-services wire
fraud. As to the former, the Fifth Circuit initially determined that
the volume and negative tone of media coverage generated by Enron’s
collapse created a presumption of juror prejudice. Stating, however,
that the presumption is rebuttable, the court examined the voir dire,
found it “proper and thorough,” and held that the District Court had
empaneled an impartial jury. The Court of Appeals also rejected
Skilling’s claim that his conduct did not indicate any conspiracy to
commit honest-services fraud. It did not address Skilling’s argument
that the honest-services statute, if not interpreted to exclude his ac
tions, should be invalidated as unconstitutionally vague.
Held:
1. Pretrial publicity and community prejudice did not prevent Skill
ing from obtaining a fair trial. He did not establish that a presump
tion of juror prejudice arose or that actual bias infected the jury that
tried him. Pp. 11–34.
(a) The District Court did not err in denying Skilling’s requests
for a venue transfer. Pp. 11–19.
(1) Although the Sixth Amendment and Art. III, §2, cl. 3, pro
vide for criminal trials in the State and district where the crime was
committed, these place-of-trial prescriptions do not impede transfer
of a proceeding to a different district if extraordinary local prejudice
will prevent a fair trial. Pp. 11–12.
(2) The foundation precedent for the presumption of prejudice
from which the Fifth Circuit’s analysis proceeded is Rideau v. Louisi
ana, 373 U. S. 723. Wilbert Rideau robbed a small-town bank, kid
naped three bank employees, and killed one of them. Police interro
gated Rideau in jail without counsel present and obtained his
confession, which, without his knowledge, was filmed and televised
three times to large local audiences shortly before trial. After the
Louisiana trial court denied Rideau’s change-of-venue motion, he was
convicted, and the conviction was upheld on direct appeal. This
Court reversed. “[T]o the tens of thousands of people who saw and
heard it,” the Court explained, the interrogation “in a very real sense
was Rideau’s trial—at which he pleaded guilty.” Id., at 726.
“[W]ithout pausing to examine . . . the voir dire,” the Court held that
the “kangaroo court proceedings” trailing the televised confession vio
lated due process. Id., at 726–727. The Court followed Rideau in two
other cases in which media coverage manifestly tainted criminal
4 SKILLING v. UNITED STATES
Syllabus
prosecutions. However, it later explained that those decisions “can
not be made to stand for the proposition that juror exposure to . . .
news accounts of the crime . . . alone presumptively deprives the de
fendant of due process.” Murphy v. Florida, 421 U. S. 794, 798–799.
Thus, prominence does not necessarily produce prejudice, and juror
impartiality does not require ignorance. See, e.g., Irvin v. Dowd, 366
U. S. 717, 722. A presumption of prejudice attends only the extreme
case. Pp. 12–16.
(3) Important differences separate Skilling’s prosecution from
those in which the Court has presumed juror prejudice. First, the
Court has emphasized the size and characteristics of the community
in which the crime occurred. In contrast to the small-town setting in
Rideau, for example, the record shows that Houston is the Nation’s
fourth most populous city. Given the large, diverse pool of residents
eligible for jury duty, any suggestion that 12 impartial individuals
could not be empaneled in Houston is hard to sustain. Second, al
though news stories about Skilling were not kind, they contained no
blatantly prejudicial information such as Rideau’s dramatically
staged admission of guilt. Third, unlike Rideau and other cases in
which trial swiftly followed a widely reported crime, over four years
elapsed between Enron’s bankruptcy and Skilling’s trial. Although
reporters covered Enron-related news throughout this period, the
decibel level of media attention diminished somewhat in the years
following Enron’s collapse. Finally, and of prime significance, Skill
ing’s jury acquitted him of nine insider-trading counts. Similarly,
earlier instituted Enron-related prosecutions yielded no overwhelm
ing victory for the Government. It would be odd for an appellate
court to presume prejudice in a case in which jurors’ actions run
counter to that presumption. Pp. 16–18.
(4) The Fifth Circuit presumed juror prejudice based primarily
on the magnitude and negative tone of the media attention directed
at Enron. But “pretrial publicity—even pervasive, adverse public
ity—does not inevitably lead to an unfair trial.” Nebraska Press
Assn. v. Stuart, 427 U. S. 539, 554. Here, news stories about Enron
did not present the kind of vivid, unforgettable information the Court
has recognized as particularly likely to produce prejudice, and Hous
ton’s size and diversity diluted the media’s impact. Nor did Enron’s
sheer number of victims trigger a presumption. Although the wide
spread community impact necessitated careful identification and in
spection of prospective jurors’ connections to Enron, the extensive
screening questionnaire and follow-up voir dire yielded jurors whose
links to Enron were either nonexistent or attenuated. Finally, while
Causey’s well publicized decision to plead guilty shortly before trial
created a danger of juror prejudice, the District Court took appropri
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ate steps to mitigate that risk. Pp. 18–19.
(b) No actual prejudice contaminated Skilling’s jury. The Court
rejects Skilling’s assertions that voir dire did not adequately detect
and defuse juror prejudice and that several seated jurors were biased.
Pp. 20–34.
(1) No hard-and-fast formula dictates the necessary depth or
breadth of voir dire. Jury selection is “particularly within the prov
ince of the trial judge.” Ristaino v. Ross, 424 U. S. 589, 594–595.
When pretrial publicity is at issue, moreover, “primary reliance on
the judgment of the trial court makes [especially] good sense” be
cause the judge “sits in the locale where the publicity is said to have
had its effect” and may base her evaluation on her “own perception of
the depth and extent of news stories that might influence a juror.”
Mu’Min v. Virginia, 500 U. S. 415, 427. The Court considers the ade
quacy of jury selection in Skilling’s case attentive to the respect due
to district-court determinations of juror impartiality and of the
measures necessary to ensure that impartiality. Pp. 20–21.
(2) Skilling failed to show that his voir dire fell short of consti
tutional requirements. The jury-selection process was insufficient,
Skilling maintains, because voir dire lasted only five hours, most of
the District Court’s questions were conclusory and failed adequately
to probe jurors’ true feelings, and the court consistently took prospec
tive jurors at their word once they claimed they could be fair, no mat
ter any other indications of bias. This Court’s review of the record,
however, yields a different appraisal. The District Court initially
screened venire members by eliciting their responses to a comprehen
sive questionnaire drafted in large part by Skilling. That survey
helped to identify prospective jurors excusable for cause and served
as a springboard for further questions; voir dire thus was the culmi
nation of a lengthy process. Moreover, inspection of the question
naires and voir dire of the seated jurors reveals that, notwithstand
ing the flaws Skilling lists, the selection process secured jurors
largely uninterested in publicity about Enron and untouched by the
corporation’s collapse. Whatever community prejudice existed in
Houston generally, Skilling’s jurors were not under its sway. Relying
on Irvin v. Dowd, 366 U. S., at 727–728, Skilling asserts the District
Court should not have accepted jurors’ promises of fairness. But a
number of factors show that the District Court had far less reason
than the trial court in Irvin to discredit jurors’ assurances of imparti
ality: News stories about Enron contained nothing resembling the
horrifying information rife in reports about Leslie Irvin’s rampage of
robberies and murders; Houston shares little in common with the ru
ral community in which Irvin’s trial proceeded; circulation figures for
Houston media sources were far lower than the 95% saturation level
6 SKILLING v. UNITED STATES
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recorded in Irvin; and Skilling’s seated jurors exhibited nothing like
the display of bias shown in Irvin. In any event, the District Court
did not simply take venire members at their word. It questioned
each juror individually to uncover concealed bias. This face-to-face
opportunity to gauge demeanor and credibility, coupled with informa
tion from the questionnaires regarding jurors’ backgrounds, opinions,
and news sources, gave the court a sturdy foundation to assess fit
ness for jury service. Pp. 22–30.
(3) Skilling’s allegation that several jurors were openly biased
also fails. In reviewing such claims, the deference due to district
courts is at its pinnacle: “ ‘A trial court’s findings of juror impartiality
may be overturned only for manifest error.’ ” Mu’Min, 500 U. S., at
428. Skilling, moreover, unsuccessfully challenged only one of the
seated jurors for cause, “strong evidence that he was convinced the
[other] jurors were not biased and had not formed any opinions as to
his guilt.” Beck v. Washington, 369 U. S. 541, 557–558. A review of
the record reveals no manifest error regarding the empaneling of Ju
rors 11, 20, and 63, each of whom indicated, inter alia, that he or she
would be fair to Skilling and would require the Government to prove
its case. Four other jurors Skilling claims he would have excluded
with extra peremptory strikes, Jurors 38, 67, 78, and 84, exhibited no
signs of prejudice this Court can discern. Pp. 31–34.
2. Section 1346, which proscribes fraudulent deprivations of “the
intangible right of honest services,” is properly confined to cover only
bribery and kickback schemes. Because Skilling’s alleged misconduct
entailed no bribe or kickback, it does not fall within the Court’s con
finement of §1346’s proscription. Pp. 34–51.
(a) To place Skilling’s claim that §1346 is unconstitutionally
vague in context, the Court reviews the origin and subsequent appli
cation of the honest-services doctrine. Pp. 34–38.
(1) In a series of decisions beginning in the 1940s, the Courts
of Appeals, one after another, interpreted the mail-fraud statute’s
prohibition of “any scheme or artifice to defraud” to include depriva
tions not only of money or property, but also of intangible rights.
See, e.g., Shushan v. United States, 117 F. 2d 110, which stimulated
the development of the “honest-services” doctrine. Unlike traditional
fraud, in which the victim’s loss of money or property supplied the de
fendant’s gain, with one the mirror image of the other, the honest
services doctrine targeted corruption that lacked similar symmetry.
While the offender profited, the betrayed party suffered no depriva
tion of money or property; instead, a third party, who had not been
deceived, provided the enrichment. Even if the scheme occasioned a
money or property gain for the betrayed party, courts reasoned, ac
tionable harm lay in the denial of that party’s right to the offender’s
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Syllabus
“honest services.” Most often these cases involved bribery of public
officials, but over time, the courts increasingly recognized that the
doctrine applied to a private employee who breached his allegiance to
his employer, often by accepting bribes or kickbacks. By 1982, all
Courts of Appeals had embraced the honest-services theory of fraud.
Pp. 34–37.
(2) In 1987, this Court halted the development of the intangi
ble-rights doctrine in McNally v. United States, 483 U. S. 350, 360,
which held that the mail-fraud statute was “limited in scope to the
protection of property rights.” “If Congress desires to go further,” the
Court stated, “it must speak more clearly.” Ibid. P. 37.
(3) Congress responded the next year by enacting §1346, which
provides: “For the purposes of th[e] chapter [of the U. S. Code that
prohibits, inter alia, mail fraud, §1341, and wire fraud, §1343], the
term ‘scheme or artifice to defraud’ includes a scheme or artifice to
deprive another of the intangible right of honest services.” Pp 37–38.
(b) Section 1346, properly confined to core cases, is not unconsti
tutionally vague. Pp. 38–51.
(1) To satisfy due process, “a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary people
can understand what conduct is prohibited and [2] in a manner that
does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U. S. 352, 357. The void-for-vagueness doc
trine embraces these requirements. Skilling contends that §1346
meets neither of the two due-process essentials. But this Court must,
if possible, construe, not condemn, Congress’ enactments. See, e.g.,
Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 571. Alert to
§1346’s potential breadth, the Courts of Appeals have divided on how
best to interpret the statute. Uniformly, however, they have declined
to throw out the statute as irremediably vague. This Court agrees
that §1346 should be construed rather than invalidated. P. 38–39.
(2) The Court looks to the doctrine developed in pre-McNally
cases in an endeavor to ascertain the meaning of the phrase “the in
tangible right of honest services.” There is no doubt that Congress
intended §1346 to refer to and incorporate the honest-services doc
trine recognized in Courts of Appeals’ decisions before McNally de
railed the intangible-rights theory of fraud. Congress, it bears em
phasis, enacted §1346 on the heels of McNally and drafted the
statute using that decision’s terminology. See 483 U. S., at 355, 362.
Pp. 39–40.
(3) To preserve what Congress certainly intended §1346 to
cover, the Court pares the pre-McNally body of precedent down to its
core: In the main, the pre-McNally cases involved fraudulent schemes
to deprive another of honest services through bribes or kickbacks
8 SKILLING v. UNITED STATES
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supplied by a third party who had not been deceived. In parsing the
various pre-McNally decisions, the Court acknowledges that Skill
ing’s vagueness challenge has force, for honest-services decisions
were not models of clarity or consistency. It has long been the
Court’s practice, however, before striking a federal statute as imper
missibly vague, to consider whether the prescription is amenable to a
limiting construction. See, e.g., Hooper v. California, 155 U. S. 648,
657. Arguing against any limiting construction, Skilling contends
that it is impossible to identify a salvageable honest-services core be
cause the pre-McNally cases are inconsistent and hopelessly unclear.
This Court rejected an argument of the same tenor in Letter Carriers,
413 U. S., at 571–572. Although some applications of the pre-
McNally honest-services doctrine occasioned disagreement among the
Courts of Appeals, these decisions do not cloud the fact that the vast
majority of cases involved offenders who, in violation of a fiduciary
duty, participated in bribery or kickback schemes. Indeed, McNally
itself presented a paradigmatic kickback fact pattern. 483 U. S., at
352–353, 360. In view of this history, there is no doubt that Congress
intended §1346 to reach at least bribes and kickbacks. Because read
ing the statute to proscribe a wider range of offensive conduct would
raise vagueness concerns, the Court holds that §1346 criminalizes
only the bribe-and-kickback core of the pre-McNally case law.
Pp. 41–45.
(4) The Government urges the Court to go further by reading
§1346 to proscribe another category of conduct: undisclosed self
dealing by a public official or private employee. Neither of the Gov
ernment’s arguments in support of this position withstands close in
spection. Contrary to the first, McNally itself did not center on non
disclosure of a conflicting financial interest, but rather involved a
classic kickback scheme. See 483 U. S., at 352–353, 360. Reading
§1346 to proscribe bribes and kickbacks—and nothing more—
satisfies Congress’ undoubted aim to reverse McNally on its facts.
Nor is the Court persuaded by the Government’s argument that the
pre-McNally conflict-of-interest cases constitute core applications of
the honest-services doctrine. Although the Courts of Appeals upheld
honest-services convictions for some conflict-of-interest schemes, they
reached no consensus on which schemes qualified. Given the relative
infrequency of those prosecutions and the intercircuit inconsistencies
they produced, the Court concludes that a reasonable limiting con
struction of §1346 must exclude this amorphous category of cases.
Further dispelling doubt on this point is the principle that “ambigu
ity concerning the ambit of criminal statutes should be resolved in
favor of lenity.” Cleveland v. United States, 531 U. S. 12, 25. The
Court therefore resists the Government’s less constrained construc
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Syllabus
tion of §1346 absent Congress’ clear instruction otherwise. “If Con
gress desires to go further,” the Court reiterates, “it must speak more
clearly than it has.” McNally, 483 U. S., at 360. Pp. 45–47.
(5) Interpreted to encompass only bribery and kickback
schemes, §1346 is not unconstitutionally vague. A prohibition on
fraudulently depriving another of one’s honest services by accepting
bribes or kickbacks presents neither a fair-notice nor an arbitrary
prosecution problem. See Kolender, 461 U. S., at 357. As to fair no
tice, it has always been clear that bribes and kickbacks constitute
honest-services fraud, Williams v. United States, 341 U. S. 97, 101,
and the statute’s mens rea requirement further blunts any notice
concern, see, e.g., Screws v. United States, 325 U. S. 91, 101–104. As
to arbitrary prosecutions, the Court perceives no significant risk that
the honest-services statute, as here interpreted, will be stretched out
of shape. Its prohibition on bribes and kickbacks draws content not
only from the pre-McNally case law, but also from federal statutes
proscribing and defining similar crimes. Pp. 48–49.
(c) Skilling did not violate §1346, as the Court interprets the
statute. The Government charged Skilling with conspiring to de
fraud Enron’s shareholders by misrepresenting the company’s fiscal
health to his own profit, but the Government never alleged that he
solicited or accepted side payments from a third party in exchange for
making these misrepresentations. Because the indictment alleged
three objects of the conspiracy—honest-services wire fraud, money
or-property wire fraud, and securities fraud—Skilling’s conviction is
flawed. See Yates v. United States, 354 U. S. 298. This determina
tion, however, does not necessarily require reversal of the conspiracy
conviction, for errors of the Yates variety are subject to harmless
error analysis. The Court leaves the parties’ dispute about whether
the error here was harmless for resolution on remand, along with the
question whether reversal on the conspiracy count would touch any of
Skilling’s other convictions. Pp. 49–50.
554 F. 3d 529, affirmed in part, vacated in part, and remanded.
GINSBURG, J., delivered the opinion of the Court, Part I of which was
joined by ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and
ALITO, JJ., Part II of which was joined by ROBERTS, C. J., and SCALIA,
KENNEDY, and THOMAS, JJ., and Part III of which was joined by ROB-
ERTS, C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ. SCALIA,
J., filed an opinion concurring in part and concurring in the judgment,
in which THOMAS, J., joined, and KENNEDY, J., joined except as to Part
III. ALITO, J., filed an opinion concurring in part and concurring in the
judgment. SOTOMAYOR, J., filed an opinion concurring in part and dis
senting in part, in which STEVENS and BREYER, JJ., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1394
_________________
JEFFREY K. SKILLING, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2010]
JUSTICE GINSBURG delivered the opinion of the Court.
In 2001, Enron Corporation, then the seventh highest
revenue-grossing company in America, crashed into bank
ruptcy. We consider in this opinion two questions arising
from the prosecution of Jeffrey Skilling, a longtime Enron
executive, for crimes committed before the corporation’s
collapse. First, did pretrial publicity and community
prejudice prevent Skilling from obtaining a fair trial?
Second, did the jury improperly convict Skilling of con
spiracy to commit “honest-services” wire fraud, 18 U. S. C.
§§371, 1343, 1346?
Answering no to both questions, the Fifth Circuit af
firmed Skilling’s convictions. We conclude, in common
with the Court of Appeals, that Skilling’s fair-trial argu
ment fails; Skilling, we hold, did not establish that a
presumption of juror prejudice arose or that actual bias
infected the jury that tried him. But we disagree with the
Fifth Circuit’s honest-services ruling. In proscribing
fraudulent deprivations of “the intangible right of honest
services,” §1346, Congress intended at least to reach
schemes to defraud involving bribes and kickbacks. Con
2 SKILLING v. UNITED STATES
Opinion of the Court
struing the honest-services statute to extend beyond that
core meaning, we conclude, would encounter a vagueness
shoal. We therefore hold that §1346 covers only bribery
and kickback schemes. Because Skilling’s alleged miscon
duct entailed no bribe or kickback, it does not fall within
§1346’s proscription. We therefore affirm in part and
vacate in part.
I
Founded in 1985, Enron Corporation grew from its
headquarters in Houston, Texas, into one of the world’s
leading energy companies. Skilling launched his career
there in 1990 when Kenneth Lay, the company’s founder,
hired him to head an Enron subsidiary. Skilling steadily
rose through the corporation’s ranks, serving as president
and chief operating officer, and then, beginning in Febru
ary 2001, as chief executive officer. Six months later, on
August 14, 2001, Skilling resigned from Enron.
Less than four months after Skilling’s departure, Enron
spiraled into bankruptcy. The company’s stock, which had
traded at $90 per share in August 2000, plummeted to
pennies per share in late 2001. Attempting to comprehend
what caused the corporation’s collapse, the U. S. Depart
ment of Justice formed an Enron Task Force, comprising
prosecutors and FBI agents from around the Nation. The
Government’s investigation uncovered an elaborate con
spiracy to prop up Enron’s short-run stock prices by over
stating the company’s financial well-being. In the years
following Enron’s bankruptcy, the Government prosecuted
dozens of Enron employees who participated in the
scheme. In time, the Government worked its way up the
corporation’s chain of command: On July 7, 2004, a grand
jury indicted Skilling, Lay, and Richard Causey, Enron’s
former chief accounting officer.
These three defendants, the indictment alleged,
“engaged in a wide-ranging scheme to deceive the in
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Opinion of the Court
vesting public, including Enron’s shareholders, . . .
about the true performance of Enron’s businesses by:
(a) manipulating Enron’s publicly reported financial
results; and (b) making public statements and repre
sentations about Enron’s financial performance and
results that were false and misleading.” App. ¶5, p.
277a.
Skilling and his co-conspirators, the indictment continued,
“enriched themselves as a result of the scheme through
salary, bonuses, grants of stock and stock options, other
profits, and prestige.” Id., ¶14, at 280a.
Count 1 of the indictment charged Skilling with con
spiracy to commit securities and wire fraud; in particular,
it alleged that Skilling had sought to “depriv[e] Enron and
its shareholders of the intangible right of [his] honest
services.” Id., ¶87, at 318a.1 The indictment further
charged Skilling with more than 25 substantive counts of
securities fraud, wire fraud, making false representations
to Enron’s auditors, and insider trading.
In November 2004, Skilling moved to transfer the trial
to another venue; he contended that hostility toward him
in Houston, coupled with extensive pretrial publicity, had
poisoned potential jurors. To support this assertion, Skill
ing, aided by media experts, submitted hundreds of news
reports detailing Enron’s downfall; he also presented
affidavits from the experts he engaged portraying commu
nity attitudes in Houston in comparison to other potential
venues.
The U. S. District Court for the Southern District of
——————
1 The mail- and wire-fraud statutes criminalize the use of the mails or
wires in furtherance of “any scheme or artifice to defraud, or for obtain
ing money or property by means of false or fraudulent pretenses,
representations, or promises.” 18 U. S. C. §1341 (mail fraud); §1343
(wire fraud). The honest-services statute, §1346, defines “the term
‘scheme or artifice to defraud’ ” in these provisions to include “a scheme
or artifice to deprive another of the intangible right of honest services.”
4 SKILLING v. UNITED STATES
Opinion of the Court
Texas, in accord with rulings in two earlier instituted
Enron-related prosecutions,2 denied the venue-transfer
motion. Despite “isolated incidents of intemperate com
mentary,” the court observed, media coverage “ha[d]
[mostly] been objective and unemotional,” and the facts of
the case were “neither heinous nor sensational.” App. to
Brief for United States 10a–11a.3 Moreover, “courts ha[d]
commonly” favored “effective voir dire . . . to ferret out any
[juror] bias.” Id., at 18a. Pretrial publicity about the case,
the court concluded, did not warrant a presumption that
Skilling would be unable to obtain a fair trial in Houston.
Id., at 22a.
In the months leading up to the trial, the District Court
solicited from the parties questions the court might use to
screen prospective jurors. Unable to agree on a ques-
tionnaire’s format and content, Skilling and the Govern
ment submitted dueling documents. On venire members’
sources of Enron-related news, for example, the Govern
——————
2 See United States v. Fastow, 292 F. Supp. 2d 914, 918 (SD Tex.
2003); Order in United States v. Hirko, No. 4:03–cr–00093 (SD Tex.,
Nov. 24, 2004), Doc. 484, p. 6. These rulings were made by two other
judges of the same District. Three judges residing in the area thus
independently found that defendants in Enron-related cases could
obtain a fair trial in Houston.
3 Painting a different picture of the media coverage surrounding En
ron’s collapse, JUSTICE SOTOMAYOR’s opinion relies heavily on affidavits
of media experts and jury consultants submitted by Skilling in support
of his venue-transfer motion. E.g., post, at 2, 3, 4, 5 (opinion concurring
in part and dissenting in part) (hereinafter dissent); post, at 5, n. 2, and
23, n. 10; post, at 26, and 35, n. 22. These Skilling-employed experts
selected and emphasized negative statements in various news stories.
But the District Court Judge did not find the experts’ samples repre
sentative of the coverage at large; having “[m]eticulous[ly] review[ed]
all of the evidence” Skilling presented, the court concluded that “inci
dents [of news reports using] less-than-objective language” were
dwarfed by “the largely fact-based tone of most of the articles.” App. to
Brief for United States 7a, 10a, 11a. See also post, at 3 (acknowledging
that “many of the stories were straightforward news items”).
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
ment proposed that they tick boxes from a checklist of
generic labels such as “[t]elevision,” “[n]ewspaper,” and
“[r]adio,” Record 8415; Skilling proposed more probing
questions asking venire members to list the specific names
of their media sources and to report on “what st[ood] out
in [their] mind[s]” of “all the things [they] ha[d] seen,
heard or read about Enron,” id., at 8404–8405.
The District Court rejected the Government’s sparer
inquiries in favor of Skilling’s submission. Skilling’s
questions “[we]re more helpful,” the court said, “because
[they] [we]re generally . . . open-ended and w[ould] allow
the potential jurors to give us more meaningful informa
tion.” Id., at 9539. The court converted Skilling’s submis
sion, with slight modifications, into a 77-question, 14-page
document that asked prospective jurors about, inter alia,
their sources of news and exposure to Enron-related pub
licity, beliefs concerning Enron and what caused its col
lapse, opinions regarding the defendants and their possi
ble guilt or innocence, and relationships to the company
and to anyone affected by its demise.4
——————
4 Questions included the following: “What are your opinions about the
compensation that executives of large corporations receive?”; “Have
you, any family members, or friends ever worked for or applied for work
with,” “done business with,” or “owned stock in Enron Corporation or
any Enron subsidiaries and partnership?”; “Do you know anyone . . .
who has been negatively affected or hurt in any way by what happened
at Enron?”; “Do you have an opinion about the cause of the collapse of
Enron? If YES, what is your opinion? On what do you base your
opinion?”; “Have you heard or read about any of the Enron cases? If
YES, please tell us the name of all sources from which you have heard
or read about the Enron cases.”; “Have you read any books or seen any
movies about Enron? If YES, please describe.”; “Are you angry about
what happened with Enron? If YES, please explain.”; “Do you have an
opinion about . . . Jeffrey Skilling . . . [?] If YES, what is your opinion?
On what do you base your opinion?”; “Based on anything you have
heard, read, or been told[,] do you have any opinion about the guilt or
innocence of . . . Jeffrey Skilling[?] If . . . YES . . . , please explain.”;
“[W]ould any opinion you may have formed regarding Enron or any of
6 SKILLING v. UNITED STATES
Opinion of the Court
In November 2005, the District Court mailed the ques
tionnaire to 400 prospective jurors and received responses
from nearly all the addressees. The court granted hard
ship exemptions to approximately 90 individuals, id., at
11773–11774, and the parties, with the court’s approval,
further winnowed the pool by excusing another 119 for
cause, hardship, or physical disability, id., at 11891,
13594. The parties agreed to exclude, in particular, “each
and every” prospective juror who said that a preexisting
opinion about Enron or the defendants would prevent her
from impartially considering the evidence at trial. Id., at
13668.
On December 28, 2005, three weeks before the date
scheduled for the commencement of trial, Causey pleaded
guilty. Skilling’s attorneys immediately requested a con
tinuance, and the District Court agreed to delay the pro
ceedings until the end of January 2006. Id., at 14277. In
the interim, Skilling renewed his change-of-venue motion,
arguing that the juror questionnaires revealed pervasive
bias and that news accounts of Causey’s guilty plea fur
ther tainted the jury pool. If Houston remained the trial
venue, Skilling urged that “jurors need to be questioned
individually by both the Court and counsel” concerning
their opinions of Enron and “publicity issues.” Id., at
12074.
The District Court again declined to move the trial.
Skilling, the court concluded, still had not “establish[ed]
that pretrial publicity and/or community prejudice raise[d]
a presumption of inherent jury prejudice.” Id., at 14115.
The questionnaires and voir dire, the court observed,
provided safeguards adequate to ensure an impartial jury.
——————
the defendants prevent you from impartially considering the evidence
presented during the trial of . . . Jeffrey Skilling[?] If YES or UNSURE
. . . , please explain.”; “Is there anything else you feel is important for
the court to know about you?” Record 13013–13026.
Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
Id., at 14115–14116.
Denying Skilling’s request for attorney-led voir dire, the
court said that in 17 years on the bench:
“I’ve found . . . I get more forthcoming responses from
potential jurors than the lawyers on either side. I
don’t know whether people are suspicious of lawyers—
but I think if I ask a person a question, I will get a
candid response much easier than if a lawyer asks the
question.” Id., at 11805.
But the court promised to give counsel an opportunity to
ask follow-up questions, ibid., and it agreed that venire
members should be examined individually about pretrial
publicity, id., at 11051–11053. The court also allotted the
defendants jointly 14 peremptory challenges, 2 more than
the standard number prescribed by Federal Rule of Crimi
nal Procedure 24(b)(2) and (c)(4)(B). Id., at 13673–13675.
Voir dire began on January 30, 2006. The District Court
first emphasized to the venire the importance of impartial
ity and explained the presumption of innocence and the
Government’s burden of proof. The trial, the court next
instructed, was not a forum “to seek vengeance against
Enron’s former officers,” or to “provide remedies for” its
victims. App. 823a. “The bottom line,” the court stressed,
“is that we want . . . jurors who . . . will faithfully, consci
entiously and impartially serve if selected.” Id., at 823a–
824a. In response to the court’s query whether any pro
spective juror questioned her ability to adhere to these
instructions, two individuals indicated that they could not
be fair; they were therefore excused for cause, id., at 816a,
819a–820a.
After questioning the venire as a group,5 the District
Court brought prospective jurors one by one to the bench
——————
5 Among other questions, the court asked whether sympathy toward
the victims of Enron’s collapse or a desire to see justice done would
overpower prospective jurors’ impartiality. App. 839a–840a.
8 SKILLING v. UNITED STATES
Opinion of the Court
for individual examination. Although the questions var
ied, the process generally tracked the following format:
The court asked about exposure to Enron-related news
and the content of any stories that stood out in the pro
spective juror’s mind. Next, the court homed in on ques
tionnaire answers that raised a red flag signaling possible
bias. The court then permitted each side to pose follow-up
questions. Finally, after the venire member stepped away,
the court entertained and ruled on challenges for cause.
In all, the court granted one of the Government’s for-
cause challenges and denied four; it granted three of the
defendants’ challenges and denied six. The parties agreed
to excuse three additional jurors for cause and one for
hardship.
By the end of the day, the court had qualified 38 pro
spective jurors, a number sufficient, allowing for peremp
tory challenges, to empanel 12 jurors and 4 alternates.6
Before the jury was sworn in, Skilling objected to the
seating of six jurors. He did not contend that they were in
fact biased; instead, he urged that he would have used
——————
6 Selection
procedures of similar style and duration took place in
three Enron-related criminal cases earlier prosecuted in Houston—
United States v. Arthur Andersen LLP, No. 4:02–cr–00121–1 (SD Tex.)
(charges against Enron’s outside accountants); United States v. Bayly,
No. 4:03–cr–00363 (SD Tex.) (charges against Merrill Lynch and Enron
executives for alleged sham sales of Nigerian barges); United States v.
Hirko, No. 4:03–cr–00093 (SD Tex.) (fraud and insider-trading charges
against five Enron Broadband Services executives). See Brief for
United States 9 (In all three cases, the District Court “distributed a
jury questionnaire to a pool of several hundred potential jurors; dis
missed individuals whose responses to the questionnaire demonstrated
bias or other disqualifying characteristics; and, after further question
ing by the court and counsel, selected a jury from the remaining venire
in one day.”); Government’s Memorandum of Law in Response to
Defendants’ Joint Motion to Transfer Venue in United States v. Skilling
et al., No. 4:04–cr–00025 (SD Tex., Dec. 3, 2004), Record, Doc. 231,
pp. 21–28 (describing in depth the jury-selection process in the Arthur
Andersen and Bayly trials).
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
peremptories to exclude them had he not exhausted his
supply by striking several venire members after the court
refused to excuse them for cause. Supp. App. 3sa–4sa
(Sealed).7 The court overruled this objection.
After the jurors took their oath, the District Court told
them they could not discuss the case with anyone or follow
media accounts of the proceedings. “[E]ach of you,” the
court explained, “needs to be absolutely sure that your
decisions concerning the facts will be based only on the
evidence that you hear and read in this courtroom.” App.
1026a.
Following a 4-month trial and nearly five days of delib
eration, the jury found Skilling guilty of 19 counts, includ
ing the honest-services-fraud conspiracy charge, and not
guilty of 9 insider-trading counts. The District Court
sentenced Skilling to 292 months’ imprisonment, 3 years’
supervised release, and $45 million in restitution.
On appeal, Skilling raised a host of challenges to his
convictions, including the fair-trial and honest-services
arguments he presses here. Regarding the former, the
Fifth Circuit initially determined that the volume and
negative tone of media coverage generated by Enron’s
collapse created a presumption of juror prejudice. 554
F. 3d 529, 559 (2009).8 The court also noted potential
——————
7 Skilling had requested an additional peremptory strike each time
the District Court rejected a for-cause objection. The court, which had
already granted two extra peremptories, see supra, at 7, denied each
request.
8 The Fifth Circuit described the media coverage as follows:
“Local newspapers ran many personal interest stories in which
sympathetic individuals expressed feelings of anger and betrayal
toward Enron. . . . Even the [Houston] Chronicle’s sports page wrote of
Skilling’s guilt as a foregone conclusion. Similarly, the Chronicle’s
‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed
watching those Enron jerks being led away in handcuffs.’ These are
but a few examples of the Chronicle’s coverage.” 554 F. 3d, at 559
(footnote omitted).
10 SKILLING v. UNITED STATES
Opinion of the Court
prejudice stemming from Causey’s guilty plea and from
the large number of victims in Houston—from the
“[t]housands of Enron employees . . . [who] lost their jobs,
and . . . saw their 401(k) accounts wiped out,” to Housto
nians who suffered spillover economic effects. Id., at 559–
560.
The Court of Appeals stated, however, that “the pre
sumption [of prejudice] is rebuttable,” and it therefore
examined the voir dire to determine whether “the District
Court empanelled an impartial jury.” Id., at 561 (internal
quotation marks, italics, and some capitalization omitted).
The voir dire was, in the Fifth Circuit’s view, “proper and
thorough.” Id., at 562. Moreover, the court noted, Skill-
ing had challenged only one seated juror—Juror 11—for
cause. Although Juror 11 made some troubling comments
about corporate greed, the District Court “observed [his]
demeanor, listened to his answers, and believed he would
make the government prove its case.” Id., at 564. In sum,
the Fifth Circuit found that the Government had overcome
the presumption of prejudice and that Skilling had not
“show[n] that any juror who actually sat was prejudiced
against him.” Ibid.
The Court of Appeals also rejected Skilling’s claim that
his conduct did not indicate any conspiracy to commit
honest-services fraud. “[T]he jury was entitled to convict
Skilling,” the court stated, “on these elements”: “(1) a
material breach of a fiduciary duty . . . (2) that results in a
detriment to the employer,” including one occasioned by
an employee’s decision to “withhold material information,
i.e., information that he had reason to believe would lead a
reasonable employer to change its conduct.” Id., at 547.
The Fifth Circuit did not address Skilling’s argument that
the honest-services statute, if not interpreted to exclude
his actions, should be invalidated as unconstitutionally
vague. Brief of Defendant-Appellant Jeffrey K. Skilling in
No. 06–20885 (CA5), p. 65, n. 21.
Cite as: 561 U. S. ____ (2010) 11
Opinion of the Court
Arguing that the Fifth Circuit erred in its consideration
of these claims, Skilling sought relief from this Court. We
granted certiorari, 558 U. S. ___ (2009), and now affirm in
part, vacate in part, and remand for further proceedings.9
We consider first Skilling’s allegation of juror prejudice,
and next, his honest-services argument.
II
Pointing to “the community passion aroused by Enron’s
collapse and the vitriolic media treatment” aimed at him,
Skilling argues that his trial “never should have proceeded
in Houston.” Brief for Petitioner 20. And even if it had
been possible to select impartial jurors in Houston, “[t]he
truncated voir dire . . . did almost nothing to weed out
prejudices,” he contends, so “[f]ar from rebutting the pre
sumption of prejudice, the record below affirmatively
confirmed it.” Id., at 21. Skilling’s fair-trial claim thus
raises two distinct questions. First, did the District Court
err by failing to move the trial to a different venue based
on a presumption of prejudice? Second, did actual preju
dice contaminate Skilling’s jury?10
A
1
The Sixth Amendment secures to criminal defendants
——————
9 We also granted certiorari and heard arguments this Term in two
other cases raising questions concerning the honest-services statute’s
scope. See Black v. United States, No. 08–876; Weyhrauch v. United
States, No. 08–1196. Today we vacate and remand those decisions in
light of this opinion. Black, post, p. ___; Weyhrauch, post, p. ___.
10 Assuming, as the Fifth Circuit found, that a presumption of preju
dice arose in Houston, the question presented in Skilling’s petition for
certiorari casts his actual-prejudice argument as an inquiry into when,
if ever, that presumption may be rebutted. See Pet. for Cert. i. Al
though we find a presumption of prejudice unwarranted in this case, we
consider the actual-prejudice issue to be fairly subsumed within the
question we agreed to decide. See this Court’s Rule 14.1(a).
12 SKILLING v. UNITED STATES
Opinion of the Court
the right to trial by an impartial jury. By constitutional
design, that trial occurs “in the State where the . . .
Crimes . . . have been committed.” Art. III, §2, cl. 3. See
also Amdt. 6 (right to trial by “jury of the State and dis
trict wherein the crime shall have been committed”). The
Constitution’s place-of-trial prescriptions, however, do not
impede transfer of the proceeding to a different district at
the defendant’s request if extraordinary local prejudice
will prevent a fair trial—a “basic requirement of due
process,” In re Murchison, 349 U. S. 133, 136 (1955).11
2
“The theory of our [trial] system is that the conclusions
to be reached in a case will be induced only by evidence
and argument in open court, and not by any outside influ
——————
11 Venue transfer in federal court is governed by Federal Rule of
Criminal Procedure 21, which instructs that a “court must transfer the
proceeding . . . to another district if the court is satisfied that so great a
prejudice against the defendant exists in the transferring district that
the defendant cannot obtain a fair and impartial trial there.” As the
language of the Rule suggests, district-court calls on the necessity of
transfer are granted a healthy measure of appellate-court respect. See
Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240, 245 (1964).
Federal courts have invoked the Rule to move certain highly charged
cases, for example, the prosecution arising from the bombing of the
Alfred P. Murrah Federal Office Building in Oklahoma City. See
United States v. McVeigh, 918 F. Supp. 1467, 1474 (WD Okla. 1996).
They have also exercised discretion to deny venue-transfer requests in
cases involving substantial pretrial publicity and community impact,
for example, the prosecutions resulting from the 1993 World Trade
Center bombing, see United States v. Salameh, No. S5 93 Cr. 0180
(KTD) (SDNY, Sept. 15, 1993); United States v. Yousef, No. S12 93
Cr. 180 (KTD) (SDNY, July 18, 1997), aff’d 327 F. 3d 56, 155 (CA2
2003), and the prosecution of John Walker Lindh, referred to in the
press as the American Taliban, see United States v. Lindh, 212
F. Supp. 2d 541, 549–551 (ED Va. 2002). Skilling does not argue,
distinct from his due process challenge, that the District Court abused
its discretion under Rule 21 by declining to move his trial. We there
fore review the District Court’s venue-transfer decision only for compli
ance with the Constitution.
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
ence, whether of private talk or public print.” Patterson v.
Colorado ex rel. Attorney General of Colo., 205 U. S. 454,
462 (1907) (opinion for the Court by Holmes, J.). When
does the publicity attending conduct charged as criminal
dim prospects that the trier can judge a case, as due proc
ess requires, impartially, unswayed by outside influence?
Because most cases of consequence garner at least some
pretrial publicity, courts have considered this question in
diverse settings. We begin our discussion by addressing
the presumption of prejudice from which the Fifth Cir
cuit’s analysis in Skilling’s case proceeded. The founda
tion precedent is Rideau v. Louisiana, 373 U. S. 723
(1963).
Wilbert Rideau robbed a bank in a small Louisiana
town, kidnaped three bank employees, and killed one of
them. Police interrogated Rideau in jail without counsel
present and obtained his confession. Without informing
Rideau, no less seeking his consent, the police filmed the
interrogation. On three separate occasions shortly before
the trial, a local television station broadcast the film to
audiences ranging from 24,000 to 53,000 individuals.
Rideau moved for a change of venue, arguing that he could
not receive a fair trial in the parish where the crime oc
curred, which had a population of approximately 150,000
people. The trial court denied the motion, and a jury
eventually convicted Rideau. The Supreme Court of Lou
isiana upheld the conviction.
We reversed. “What the people [in the community] saw
on their television sets,” we observed, “was Rideau, in jail,
flanked by the sheriff and two state troopers, admitting in
detail the commission of the robbery, kidnapping, and
murder.” Id., at 725. “[T]o the tens of thousands of people
who saw and heard it,” we explained, the interrogation “in
a very real sense was Rideau’s trial—at which he pleaded
guilty.” Id., at 726. We therefore “d[id] not hesitate to
hold, without pausing to examine a particularized tran
14 SKILLING v. UNITED STATES
Opinion of the Court
script of the voir dire,” that “[t]he kangaroo court proceed
ings” trailing the televised confession violated due process.
Id., at 726–727.
We followed Rideau’s lead in two later cases in which
media coverage manifestly tainted a criminal prosecution.
In Estes v. Texas, 381 U. S. 532, 538 (1965), extensive
publicity before trial swelled into excessive exposure
during preliminary court proceedings as reporters and
television crews overran the courtroom and “bombard[ed]
. . . the community with the sights and sounds of” the
pretrial hearing. The media’s overzealous reporting ef
forts, we observed, “led to considerable disruption” and
denied the “judicial serenity and calm to which [Billie Sol
Estes] was entitled.” Id., at 536.
Similarly, in Sheppard v. Maxwell, 384 U. S. 333 (1966),
news reporters extensively covered the story of Sam
Sheppard, who was accused of bludgeoning his pregnant
wife to death. “[B]edlam reigned at the courthouse during
the trial and newsmen took over practically the entire
courtroom,” thrusting jurors “into the role of celebrities.”
Id., at 353, 355. Pretrial media coverage, which we char
acterized as “months [of] virulent publicity about
Sheppard and the murder,” did not alone deny due proc
ess, we noted. Id., at 354. But Sheppard’s case involved
more than heated reporting pretrial: We upset the murder
conviction because a “carnival atmosphere” pervaded the
trial, id., at 358.
In each of these cases, we overturned a “conviction
obtained in a trial atmosphere that [was] utterly corrupted
by press coverage”; our decisions, however, “cannot be
made to stand for the proposition that juror exposure to
. . . news accounts of the crime . . . alone presumptively
deprives the defendant of due process.” Murphy v. Flor
ida, 421 U. S. 794, 798–799 (1975).12 See also, e.g., Patton
——————
12 Murphy involved the robbery prosecution of the notorious Jack
Cite as: 561 U. S. ____ (2010) 15
Opinion of the Court
v. Yount, 467 U. S. 1025 (1984).13 Prominence does not
necessarily produce prejudice, and juror impartiality, we
have reiterated, does not require ignorance. Irvin v.
Dowd, 366 U. S. 717, 722 (1961) (Jurors are not required
to be “totally ignorant of the facts and issues involved”;
“scarcely any of those best qualified to serve as jurors will
not have formed some impression or opinion as to the
merits of the case.”); Reynolds v. United States, 98 U. S.
145, 155–156 (1879) (“[E]very case of public interest is
almost, as a matter of necessity, brought to the attention
of all the intelligent people in the vicinity, and scarcely
any one can be found among those best fitted for jurors
who has not read or heard of it, and who has not some
——————
Murphy, a convicted murderer who helped mastermind the 1964 heist
of the Star of India sapphire from New York’s American Museum of
Natural History. Pointing to “extensive press coverage” about him,
Murphy moved to transfer venue. 421 U. S., at 796. The trial court
denied the motion and a jury convicted Murphy. We affirmed. Mur
phy’s trial, we explained, was markedly different from the proceedings
at issue in Rideau v. Louisiana, 373 U. S. 723 (1963), Estes v. Texas,
381 U. S. 532 (1965), and Sheppard v. Maxwell, 384 U. S. 333 (1966),
which “entirely lack[ed] . . . the solemnity and sobriety to which a
defendant is entitled in a system that subscribes to any notion of
fairness and rejects the verdict of a mob.” 421 U. S., at 799. Voir dire
revealed no great hostility toward Murphy; “[s]ome of the jurors had a
vague recollection of the robbery with which [he] was charged and each
had some knowledge of [his] past crimes, but none betrayed any belief
in the relevance of [his] past to the present case.” Id., at 800 (footnote
omitted).
13 In Yount, the media reported on Jon Yount’s confession to a brutal
murder and his prior conviction for the crime, which had been reversed
due to a violation of Miranda v. Arizona, 384 U. S. 436 (1966). During
voir dire, 77% of prospective jurors acknowledged they would carry an
opinion into the jury box, and 8 of the 14 seated jurors and alternates
admitted they had formed an opinion as to Yount’s guilt. 467 U. S., at
1029–1030. Nevertheless, we rejected Yount’s presumption-of
prejudice claim. The adverse publicity and community outrage, we
noted, were at their height prior to Yount’s first trial, four years before
the second prosecution; time had helped “sooth[e] and eras[e]” commu
nity prejudice, id., at 1034.
16 SKILLING v. UNITED STATES
Opinion of the Court
impression or some opinion in respect to its merits.”). A
presumption of prejudice, our decisions indicate, attends
only the extreme case.
3
Relying on Rideau, Estes, and Sheppard, Skilling as
serts that we need not pause to examine the screening
questionnaires or the voir dire before declaring his jury’s
verdict void. We are not persuaded. Important differ
ences separate Skilling’s prosecution from those in which
we have presumed juror prejudice.14
First, we have emphasized in prior decisions the size
and characteristics of the community in which the crime
occurred. In Rideau, for example, we noted that the mur
der was committed in a parish of only 150,000 residents.
Houston, in contrast, is the fourth most populous city in
the Nation: At the time of Skilling’s trial, more than 4.5
million individuals eligible for jury duty resided in the
Houston area. App. 627a. Given this large, diverse pool of
potential jurors, the suggestion that 12 impartial indi
viduals could not be empaneled is hard to sustain. See
Mu’Min v. Virginia, 500 U. S. 415, 429 (1991) (potential
for prejudice mitigated by the size of the “metropolitan
Washington [D. C.] statistical area, which has a popula
tion of over 3 million, and in which, unfortunately, hun
dreds of murders are committed each year”); Gentile v.
State Bar of Nev., 501 U. S. 1030, 1044 (1991) (plurality
opinion) (reduced likelihood of prejudice where venire was
drawn from a pool of over 600,000 individuals).15
——————
14 Skilling’s reliance on Estes and Sheppard is particularly misplaced;
those cases involved media interference with courtroom proceedings
during trial. See supra, at 14. Skilling does not assert that news
coverage reached and influenced his jury after it was empaneled.
15 According to a survey commissioned by Skilling in conjunction with
his first motion for a venue change, only 12.3% of Houstonians named
him when asked to list Enron executives they believed guilty of crimes.
Cite as: 561 U. S. ____ (2010) 17
Opinion of the Court
Second, although news stories about Skilling were not
kind, they contained no confession or other blatantly
prejudicial information of the type readers or viewers
could not reasonably be expected to shut from sight.
Rideau’s dramatically staged admission of guilt, for in
stance, was likely imprinted indelibly in the mind of any
one who watched it. Cf. Parker v. Randolph, 442 U. S. 62,
72 (1979) (plurality opinion) (“[T]he defendant’s own con
fession [is] probably the most probative and damaging
evidence that can be admitted against him.” (internal
quotation marks omitted)). Pretrial publicity about Skill
ing was less memorable and prejudicial. No evidence of
the smoking-gun variety invited prejudgment of his culpa
bility. See United States v. Chagra, 669 F. 2d 241, 251–
252, n. 11 (CA5 1982) (“A jury may have difficulty in
disbelieving or forgetting a defendant’s opinion of his own
guilt but have no difficulty in rejecting the opinions of
others because they may not be well-founded.”).
Third, unlike cases in which trial swiftly followed a
widely reported crime, e.g., Rideau, 373 U. S., at 724, over
four years elapsed between Enron’s bankruptcy and Skill
ing’s trial. Although reporters covered Enron-related
news throughout this period, the decibel level of media
attention diminished somewhat in the years following
Enron’s collapse. See App. 700a; id., at 785a; Yount, 467
U. S., at 1032, 1034.
Finally, and of prime significance, Skilling’s jury acquit
ted him of nine insider-trading counts. Similarly, earlier
instituted Enron-related prosecutions yielded no over
——————
App. 375a–376a. In response to the follow-up question “[w]hat words
come to mind when you hear the name Jeff Skilling?”, two-thirds of
respondents failed to say a single negative word, id., at 376a: 43%
either had never heard of Skilling or stated that nothing came to mind
when they heard his name, and another 23% knew Skilling’s name was
associated with Enron but reported no opinion about him, Record 3210–
3211; see App. 417a–492a.
18 SKILLING v. UNITED STATES
Opinion of the Court
whelming victory for the Government.16 In Rideau, Estes,
and Sheppard, in marked contrast, the jury’s verdict did
not undermine in any way the supposition of juror bias. It
would be odd for an appellate court to presume prejudice
in a case in which jurors’ actions run counter to that pre
sumption. See, e.g., United States v. Arzola-Amaya, 867
F. 2d 1504, 1514 (CA5 1989) (“The jury’s ability to discern
a failure of proof of guilt of some of the alleged crimes
indicates a fair minded consideration of the issues and
reinforces our belief and conclusion that the media cover
age did not lead to the deprivation of [the] right to an
impartial trial.”).
4
Skilling’s trial, in short, shares little in common with
those in which we approved a presumption of juror preju
dice. The Fifth Circuit reached the opposite conclusion
based primarily on the magnitude and negative tone of
media attention directed at Enron. But “pretrial public
ity—even pervasive, adverse publicity—does not inevita
bly lead to an unfair trial.” Nebraska Press Assn. v. Stu
art, 427 U. S. 539, 554 (1976). In this case, as just noted,
news stories about Enron did not present the kind of vivid,
unforgettable information we have recognized as particu
larly likely to produce prejudice, and Houston’s size and
diversity diluted the media’s impact.17
——————
16 As the United States summarizes, “[i]n Hirko, the jury deliberated
for several days and did not convict any Enron defendant; in Bayly,
which was routinely described as ‘the first Enron criminal trial,’ the
jury convicted five defendants, . . . but acquitted a former Enron execu
tive. At the sentencing phase of Bayly, the jury found a loss amount of
slightly over $13 million, even though the government had argued that
the true loss . . . was $40 million.” Brief for United States 9–10 (cita
tion omitted).
17 The Fifth Circuit, moreover, did not separate media attention
aimed at Skilling from that devoted to Enron’s downfall more generally.
Data submitted by Skilling in support of his first motion for a venue
Cite as: 561 U. S. ____ (2010) 19
Opinion of the Court
Nor did Enron’s “sheer number of victims,” 554 F. 3d, at
560, trigger a presumption of prejudice. Although the
widespread community impact necessitated careful identi
fication and inspection of prospective jurors’ connections to
Enron, the extensive screening questionnaire and follow
up voir dire were well suited to that task. And hindsight
shows the efficacy of these devices; as we discuss infra,
at 24, jurors’ links to Enron were either nonexistent or
attenuated.
Finally, although Causey’s “well-publicized decision to
plead guilty” shortly before trial created a danger of juror
prejudice, 554 F. 3d, at 559, the District Court took appro
priate steps to reduce that risk. The court delayed the
proceedings by two weeks, lessening the immediacy of that
development. And during voir dire, the court asked about
prospective jurors’ exposure to recent publicity, including
news regarding Causey. Only two venire members re
called the plea; neither mentioned Causey by name, and
neither ultimately served on Skilling’s jury. App. 888a,
993a. Although publicity about a codefendant’s guilty plea
calls for inquiry to guard against actual prejudice, it does
not ordinarily—and, we are satisfied, it did not here—
warrant an automatic presumption of prejudice.
Persuaded that no presumption arose,18 we conclude
that the District Court, in declining to order a venue
change, did not exceed constitutional limitations.19
——————
transfer suggested that a slim percentage of Enron-related stories
specifically named him. App. 572a. “[W]hen publicity is about the
event, rather than directed at individual defendants, this may lessen
any prejudicial impact.” United States v. Hueftle, 687 F. 2d 1305, 1310
(CA10 1982).
18 The parties disagree about whether a presumption of prejudice can
be rebutted, and, if it can, what standard of proof governs that issue.
Compare Brief for Petitioner 25–35 with Brief for United States 24–32,
35–36. Because we hold that no presumption arose, we need not, and
do not, reach these questions.
19 The dissent acknowledges that “the prospect of seating an unbiased
20 SKILLING v. UNITED STATES
Opinion of the Court
B
We next consider whether actual prejudice infected
Skilling’s jury. Voir dire, Skilling asserts, did not ade
quately detect and defuse juror bias. “[T]he record . . .
affirmatively confirm[s]” prejudice, he maintains, because
several seated jurors “prejudged his guilt.” Brief for Peti
tioner 21. We disagree with Skilling’s characterization of
the voir dire and the jurors selected through it.
1
No hard-and-fast formula dictates the necessary depth
or breadth of voir dire. See United States v. Wood, 299
U. S. 123, 145–146 (1936) (“Impartiality is not a technical
conception. It is a state of mind. For the ascertainment of
this mental attitude of appropriate indifference, the Con
stitution lays down no particular tests and procedure is
not chained to any ancient and artificial formula.”). Jury
selection, we have repeatedly emphasized, is “particularly
within the province of the trial judge.” Ristaino v. Ross,
424 U. S. 589, 594–595 (1976) (internal quotation marks
omitted); see, e.g., Mu’Min, 500 U. S., at 424; Yount, 467
U. S., at 1038; Rosales-Lopez v. United States, 451 U. S.
182, 188–189 (1981) (plurality opinion); Connors v. United
States, 158 U. S. 408–413 (1895).
When pretrial publicity is at issue, “primary reliance on
the judgment of the trial court makes [especially] good
sense” because the judge “sits in the locale where the
publicity is said to have had its effect” and may base her
evaluation on her “own perception of the depth and extent
of news stories that might influence a juror.” Mu’Min, 500
U. S., at 427. Appellate courts making after-the-fact
——————
jury in Houston was not so remote as to compel the conclusion that the
District Court acted unconstitutionally in denying Skilling’s motion to
change venue.” Post, at 20. The dissent’s conclusion that Skilling did
not receive a fair trial accordingly turns on its perception of the ade
quacy of the jury-selection process.
Cite as: 561 U. S. ____ (2010) 21
Opinion of the Court
assessments of the media’s impact on jurors should be
mindful that their judgments lack the on-the-spot com
prehension of the situation possessed by trial judges.
Reviewing courts are properly resistant to second
guessing the trial judge’s estimation of a juror’s impartial
ity, for that judge’s appraisal is ordinarily influenced by a
host of factors impossible to capture fully in the record—
among them, the prospective juror’s inflection, sincerity,
demeanor, candor, body language, and apprehension of
duty. See Reynolds, 98 U. S., at 156–157. In contrast to
the cold transcript received by the appellate court, the in
the-moment voir dire affords the trial court a more inti
mate and immediate basis for assessing a venire member’s
fitness for jury service. We consider the adequacy of jury
selection in Skilling’s case, therefore, attentive to the
respect due to district-court determinations of juror im
partiality and of the measures necessary to ensure that
impartiality.20
——————
20 The dissent recognizes “the ‘wide discretion’ owed to trial courts
when it comes to jury-related issues,” post, at 22 (quoting Mu’Min v.
Virginia, 500 U. S. 415, 427 (1991)), but its analysis of the District
Court’s voir dire sometimes fails to demonstrate that awareness. For
example, the dissent faults the District Court for not questioning
prospective jurors regarding their “knowledge of or feelings about”
Causey’s guilty plea. Post, at 28. But the court could reasonably
decline to ask direct questions involving Causey’s plea to avoid tipping
off until-that-moment uninformed venire members that the plea had
occurred. Cf. App. 822a (counsel for Skilling urged District Court to
find a way to question venire members about Causey “without mention
ing anything”). Nothing inhibited defense counsel from inquiring about
venire members’ knowledge of the plea; indeed, counsel posed such a
question, id., at 993a; cf. post, at 28, n. 14 (acknowledging that counsel
“squeeze[d] in” an inquiry whether a venire member had “read about
any guilty pleas in this case over the last month or two” (internal
quotation marks omitted)). From this Court’s lofty and “panoramic”
vantage point, post, at 22, lines of voir dire inquiry that “might be
helpful in assessing whether a juror is impartial” are not hard to
conceive. Mu’Min, 500 U. S., at 425. “To be constitutionally compelled,
however, it is not enough that such questions might be helpful. Rather,
22 SKILLING v. UNITED STATES
Opinion of the Court
2
Skilling deems the voir dire insufficient because, he
argues, jury selection lasted “just five hours,” “[m]ost of
the court’s questions were conclusory[,] high-level, and
failed adequately to probe jurors’ true feelings,” and the
court “consistently took prospective jurors at their word
once they claimed they could be fair, no matter what other
indications of bias were present.” Brief for Petitioner 10–
11 (emphasis deleted). Our review of the record, however,
yields a different appraisal.21
As noted, supra, at 4–6, and n. 4, the District Court
initially screened venire members by eliciting their re
sponses to a comprehensive questionnaire drafted in large
part by Skilling. That survey helped to identify prospec
tive jurors excusable for cause and served as a spring
board for further questions put to remaining members of
the array. Voir dire thus was, in the court’s words, the
“culmination of a lengthy process.” App. 841a; see 554
F. 3d, at 562, n. 51 (“We consider the . . . questionnaire in
——————
the trial court’s failure to ask these questions must render the defen
dant’s trial fundamentally unfair.” Id., at 425–426. According appro
priate deference to the District Court, we cannot characterize jury
selection in this case as fundamentally unfair. Cf. supra, at 8, n. 6
(same selection process was used in other Enron-related prosecutions).
21 In addition to focusing on the adequacy of voir dire, our decisions
have also “take[n] into account . . . other measures [that] were used to
mitigate the adverse effects of publicity.” Nebraska Press Assn. v.
Stuart, 427 U. S. 539, 565 (1976). We have noted, for example, the
prophylactic effect of “emphatic and clear instructions on the sworn
duty of each juror to decide the issues only on evidence presented in
open court.” Id., at 564. Here, the District Court’s instructions were
unequivocal; the jurors, the court emphasized, were duty bound “to
reach a fair and impartial verdict in this case based solely on the
evidence [they] hear[d] and read in th[e] courtroom.” App. 1026a.
Peremptory challenges, too, “provid[e] protection against [prejudice],”
United States ex rel. Darcy v. Handy, 351 U. S. 454, 462 (1956); the
District Court, as earlier noted, exercised its discretion to grant the
defendants two extra peremptories, App. 1020a; see supra, at 7.
Cite as: 561 U. S. ____ (2010) 23
Opinion of the Court
assessing the quality of voir dire as a whole.”).22 In other
Enron-related prosecutions, we note, District Courts, after
inspecting venire members’ responses to questionnaires,
completed the jury-selection process within one day. See
supra, at 8, n. 6.23
The District Court conducted voir dire, moreover, aware
of the greater-than-normal need, due to pretrial publicity,
to ensure against jury bias. At Skilling’s urging, the court
examined each prospective juror individually, thus pre
venting the spread of any prejudicial information to other
venire members. See Mu’Min, 500 U. S., at 425. To en
courage candor, the court repeatedly admonished that
there were “no right and wrong answers to th[e] ques
tions.” E.g., App. 843a. The court denied Skilling’s re
quest for attorney-led voir dire because, in its experience,
potential jurors were “more forthcoming” when the court,
rather than counsel, asked the question. Record 11805.
The parties, however, were accorded an opportunity to ask
follow-up questions of every prospective juror brought to
——————
22 The dissent’s analysis undervalues the 77-item questionnaire, a
part of the selection process difficult to portray as “cursory,” post, at 30,
or “anemic,” post, at 35. Notably, the “open-ended questions about
[prospective jurors’] impressions of Enron or Skilling” that the dissent
contends should have been asked, post, at 30, were asked—on the
questionnaire, see supra, at 5–6, n. 4. Moreover, the District Court
gave Skilling’s counsel relatively free rein to ask venire members about
their responses on the questionnaire. See, e.g., App. 869a–870a; id., at
878a, 911a, 953a. The questionnaire plus follow-up opportunity to
interrogate potential jurors surely gave Skilling’s counsel “clear ave
nue[s] for . . . permissible inquiry.” But see post, at 31, n. 17. See also
App. 967a (counsel for Skilling) (“Judge, for the record, if I don’t ask
any questions, it’s because the Court and other counsel have covered
it.”).
23 One of the earlier prosecutions targeted the “Big Five” public ac
counting firm Arthur Andersen. See supra, at 8, n. 6. Among media
readers and auditors, the name and reputation of Arthur Andersen
likely sparked no less attention than the name and reputation of
Jeffrey Skilling. Cf. supra, at 16–17, n. 15.
24 SKILLING v. UNITED STATES
Opinion of the Court
the bench for colloquy. Skilling’s counsel declined to ask
anything of more than half of the venire members ques
tioned individually, including eight eventually selected for
the jury, because, he explained, “the Court and other
counsel have covered” everything he wanted to know.
App. 967a.
Inspection of the questionnaires and voir dire of the
individuals who actually served as jurors satisfies us that,
notwithstanding the flaws Skilling lists, the selection
process successfully secured jurors who were largely un
touched by Enron’s collapse.24 Eleven of the seated jurors
and alternates reported no connection at all to Enron,
while all other jurors reported at most an insubstantial
link. See, e.g., Supp. App. 101sa (Juror 63) (“I once met a
guy who worked for Enron. I cannot remember his
name.”).25 As for pretrial publicity, 14 jurors and alter
nates specifically stated that they had paid scant attention
to Enron-related news. See, e.g., App. 859a–860a (Juror
——————
24 In considering whether Skilling was tried before an impartial jury,
the dissent relies extensively on venire members not selected for that
jury. See, e.g., post, at 6, n. 4 (quoting the questionnaires of ten venire
members; all were excused for cause before voir dire commenced, see
Record 11891); post, at 7, n. 6 (quoting the questionnaires of 15 venire
members; none sat on Skilling’s jury); post, at 10–11, n. 7 (quoting voir
dire testimony of six venire members; none sat on Skilling’s jury); post,
at 28–34 (reporting at length voir dire testimony of Venire Members 17,
29, 61, 74, 75, and 101; none sat on Skilling’s jury). Statements by
nonjurors do not themselves call into question the adequacy of the jury
selection process; elimination of these venire members is indeed one
indicator that the process fulfilled its function. Critically, as discussed
infra, at 24–26, the seated jurors showed little knowledge of or interest
in, and were personally unaffected by, Enron’s downfall.
25 See also Supp. App. 11sa (Juror 10) (“knew some casual co-workers
that owned Enron stock”); id., at 26sa (Juror 11) (“work[s] with some
one who worked at Enron”); id., at 117sa; App. 940a (Juror 64) (two
acquaintances lost money due to Enron’s collapse); Supp. App. 236sa
(Juror 116) (work colleague lost money as a result of Enron’s
bankruptcy).
Cite as: 561 U. S. ____ (2010) 25
Opinion of the Court
13) (would “[b]asically” start out knowing nothing about
the case because “I just . . . didn’t follow [it] a whole lot”);
id., at 969a (Juror 78) (“[Enron] wasn’t anything that I
was interested in reading [about] in detail. . . . I don’t
really know much about it.”).26 The remaining two jurors
indicated that nothing in the news influenced their opin
ions about Skilling.27
The questionnaires confirmed that, whatever commu
nity prejudice existed in Houston generally, Skilling’s
jurors were not under its sway.28 Although many ex
——————
26 See also App. 850a (Juror 10) (“I haven’t followed [Enron-related
news] in detail or to any extreme at all.”); id., at 856a (Juror 11) (did
not “get into the details of [the Enron case]” and “just kind of tune[d]
[it] out”); id., at 873a (Juror 20) (“I was out of [the] state when [Enron
collapsed], and then personal circumstances kept me from paying much
attention.”); id., at 892a (Juror 38) (recalled “nothing in particular”
about media coverage); id., at 913a (Juror 50) (“I would hear it on the
news and just let it filter in and out.”); id., at 935a (Juror 63) (“I don’t
really pay attention.”); id., at 940a–941a (Juror 64) (had “[n]ot really”
been keeping up with and did not recall any news about Enron); id., at
971a (Juror 84) (had not read “anything at all about Enron” because he
did not “want to read that stuff” (internal quotation marks omitted));
id., at 983a (Juror 90) (“seldom” read the Houston Chronicle and did
not watch news programs); id., at 995a–996a (Juror 99) (did not read
newspapers or watch the news; “I don’t know the details on what [this
case] is or what made it what it is”); id., at 1010a (Juror 113) (“never
really paid that much attention [to] it”); id., at 1013a (Juror 116) (had
“rea[d] a number of different articles,” but “since it hasn’t affected me
personally,” could not “specifically recall” any of them).
27 Id., at 944a (Juror 67) (had not read the Houston Chronicle in the
three months preceding the trial and volunteered: “I don’t form an
opinion based on what . . . I hear on the news”); id., at 974a–975a
(Juror 87) (had not “formed any opinions” about Skilling’s guilt from
news stories).
28 As the D. C. Circuit observed, reviewing the impact on jurors of
media coverage of the Watergate scandal, “[t]his may come as a sur
prise to lawyers and judges, but it is simply a fact of life that matters
which interest them may be less fascinating to the public generally.”
United States v. Haldeman, 559 F. 2d 31, 62–63, n. 37 (1976). See
also In re Charlotte Observer, 882 F. 2d 850, 855–856 (CA4 1989)
26 SKILLING v. UNITED STATES
Opinion of the Court
pressed sympathy for victims of Enron’s bankruptcy and
speculated that greed contributed to the corporation’s
collapse, these sentiments did not translate into animus
toward Skilling. When asked whether they “ha[d] an
opinion about . . . Jeffrey Skilling,” none of the seated
jurors and alternates checked the “yes” box.29 And in
response to the question whether “any opinion [they] may
have formed regarding Enron or [Skilling] [would] pre
vent” their impartial consideration of the evidence at trial,
every juror—despite options to mark “yes” or “unsure”—
instead checked “no.”
The District Court, Skilling asserts, should not have
“accept[ed] at face value jurors’ promises of fairness.”
Brief for Petitioner 37. In Irvin v. Dowd, 366 U. S., at
727–728, Skilling points out, we found actual prejudice
despite jurors’ assurances that they could be impartial.
Brief for Petitioner 26. JUSTICE SOTOMAYOR, in turn,
repeatedly relies on Irvin, which she regards as closely
analogous to this case. See post, at 23 (opinion concurring
in part and dissenting in part) (hereinafter dissent). See
also, e.g., post, at 15–16, 33, 35, 39–40. We disagree with
that characterization of Irvin.
The facts of Irvin are worlds apart from those presented
——————
(“[R]emarkably in the eyes of many,” “[c]ases such as those involving
the Watergate defendants, the Abscam defendants, and . . . John
DeLorean, all characterized by massive pretrial media reportage and
commentary, nevertheless proceeded to trial with juries which . . . were
satisfactorily disclosed to have been unaffected (indeed, in some in
stances blissfully unaware of or untouched) by that publicity.”); Brief
for ABC, Inc., et al. as Amici Curiae 25–31 (describing other examples).
29 One juror did not check any box, explaining that she lived in an
other State when Enron went bankrupt and therefore “was not fully
aware of all the facts regarding Enron’s fall [and] the media coverage.”
Supp. App. 62sa (Juror 20). Two other jurors, Juror 10 and Juror 63,
indicated in answer to a different question that they had an opinion
about Skilling’s guilt, but voir dire established they could be impartial.
See infra, at 32, and 33, n. 33.
Cite as: 561 U. S. ____ (2010) 27
Opinion of the Court
here. Leslie Irvin stood accused of a brutal murder and
robbery spree in a small rural community. 366 U. S., at
719. In the months before Irvin’s trial, “a barrage” of
publicity was “unleashed against him,” including reports
of his confessions to the slayings and robberies. Id., at
725–726. This Court’s description of the media coverage
in Irvin reveals why the dissent’s “best case” is not an apt
comparison:
“[S]tories revealed the details of [Irvin’s] background,
including a reference to crimes committed when a ju
venile, his convictions for arson almost 20 years pre
viously, for burglary and by a court-martial on AWOL
charges during the war. He was accused of being a
parole violator. The headlines announced his police
line-up identification, that he faced a lie detector test,
had been placed at the scene of the crime and that the
six murders were solved but [he] refused to confess.
Finally, they announced [Irvin’s] confession to the six
murders and the fact of his indictment for four of
them in Indiana. They reported [Irvin’s] offer to plead
guilty if promised a 99-year sentence, but also the de
termination, on the other hand, of the prosecutor to
secure the death penalty, and that [Irvin] had con
fessed to 24 burglaries (the modus operandi of these
robberies was compared to that of the murders and
the similarity noted). One story dramatically relayed
the promise of a sheriff to devote his life to securing
[Irvin’s] execution . . . . Another characterized [Irvin]
as remorseless and without conscience but also as
having been found sane by a court-appointed panel of
doctors. In many of the stories [Irvin] was described
as the ‘confessed slayer of six,’ a parole violator and
fraudulent-check artist. [Irvin’s] court-appointed
counsel was quoted as having received ‘much criticism
over being Irvin’s counsel’ and it was pointed out, by
28 SKILLING v. UNITED STATES
Opinion of the Court
way of excusing the attorney, that he would be subject
to disbarment should he refuse to represent Irvin. On
the day before the trial the newspapers carried the
story that Irvin had orally admitted [to] the murder of
[one victim] as well as ‘the robbery-murder of [a sec
ond individual]; the murder of [a third individual],
and the slaughter of three members of [a different
family].’ ” Id., at 725–726.
“[N]ewspapers in which the[se] stories appeared were
delivered regularly to 95% of the dwellings in” the county
where the trial occurred, which had a population of only
30,000; “radio and TV stations, which likewise blanketed
that county, also carried extensive newscasts covering the
same incidents.” Id., at 725.
Reviewing Irvin’s fair-trial claim, this Court noted that
“the pattern of deep and bitter prejudice” in the commu
nity “was clearly reflected in the sum total of the voir
dire”: “370 prospective jurors or almost 90% of those exam
ined on the point . . . entertained some opinion as to guilt,”
and “[8] out of the 12 [jurors] thought [Irvin] was guilty.”
Id., at 727 (internal quotation marks omitted). Although
these jurors declared they could be impartial, we held
that, “[w]ith his life at stake, it is not requiring too much
that [Irvin] be tried in an atmosphere undisturbed by so
huge a wave of public passion and by a jury other than one
in which two-thirds of the members admit, before hearing
any testimony, to possessing a belief in his guilt.” Id., at
728.
In this case, as noted, supra, at 17, news stories about
Enron contained nothing resembling the horrifying infor
mation rife in reports about Irvin’s rampage of robberies
and murders. Of key importance, Houston shares little in
common with the rural community in which Irvin’s trial
proceeded, and circulation figures for Houston media
sources were far lower than the 95% saturation level
Cite as: 561 U. S. ____ (2010) 29
Opinion of the Court
recorded in Irvin, see App. to Brief for United States 15a
(“The Houston Chronicle . . . reaches less than one-third of
occupied households in Houston.” (internal quotation
marks omitted)). Skilling’s seated jurors, moreover, exhib
ited nothing like the display of bias shown in Irvin. See
supra, at 24–26 (noting, inter alia, that none of Skilling’s
jurors answered “yes” when asked if they “ha[d] an opinion
about . . . Skilling”). See also post, at 19 (dissent) (distin
guishing Mu’Min from Irvin on similar bases: the “offense
occurred in [a large] metropolitan . . . area,” media “cover
age was not as pervasive as in Irvin and did not contain
the same sort of damaging information,” and “the seated
jurors uniformly disclaimed having ever formed an opinion
about the case” (internal quotation marks omitted)). In
light of these large differences, the District Court had far
less reason than did the trial court in Irvin to discredit
jurors’ promises of fairness.
The District Court, moreover, did not simply take venire
members who proclaimed their impartiality at their
word.30 As noted, all of Skilling’s jurors had already af
firmed on their questionnaires that they would have no
trouble basing a verdict only on the evidence at trial.
Nevertheless, the court followed up with each individually
to uncover concealed bias. This face-to-face opportunity to
gauge demeanor and credibility, coupled with information
from the questionnaires regarding jurors’ backgrounds,
opinions, and sources of news, gave the court a sturdy
foundation to assess fitness for jury service. See 554 F. 3d,
at 562 (The District Court made “thorough” credibility
determinations that “requir[ed] more than just the [venire
——————
30 The court viewed with skepticism, for example, Venire Member
104’s promises that she could “abide by law,” follow the court’s instruc
tions, and find Skilling not guilty if the Government did not prove its
case, App. 1004a; “I have to gauge . . . demeanor, all the answers she
gave me,” the court stated, and “[s]he persuaded me that she could not
be fair and impartial, so she’s excused,” id., at 1006a.
30 SKILLING v. UNITED STATES
Opinion of the Court
members’] statements that [they] could be fair.”). The
jury’s not-guilty verdict on nine insider-trading counts
after nearly five days of deliberation, meanwhile, suggests
the court’s assessments were accurate. See United States
v. Haldeman, 559 F. 2d 31, 60, n. 28 (CADC 1976). Skill
ing, we conclude, failed to show that his voir dire fell short
of constitutional requirements.31
3
Skilling also singles out several jurors in particular and
contends they were openly biased. See United States v.
Martinez-Salazar, 528 U. S. 304, 316 (2000) (“[T]he seat
ing of any juror who should have been dismissed for cause
. . . require[s] reversal.”). In reviewing claims of this type,
the deference due to district courts is at its pinnacle: “A
trial court’s findings of juror impartiality may be over
turned only for manifest error.” Mu’Min, 500 U. S., at 428
(internal quotation marks omitted). Skilling, moreover,
unsuccessfully challenged only one of the seated jurors for
cause, “strong evidence that he was convinced the [other]
jurors were not biased and had not formed any opinions as
to his guilt.” Beck v. Washington, 369 U. S. 541, 557–558
(1962). With these considerations in mind, we turn to
Skilling’s specific allegations of juror partiality.
——————
31 Skillingemphasizes that voir dire did not weed out every juror who
suffered from Enron’s collapse because the District Court failed to grant
his for-cause challenge to Venire Member 29, whose retirement fund
lost $50,000 due to ripple effects from the decline in the value of Enron
stock. App. 880a. Critically, however, Venire Member 29 did not sit on
Skilling’s jury: Instead, Skilling struck her using a peremptory chal
lenge. “[I]f [a] defendant elects to cure [a trial judge’s erroneous for
cause ruling] by exercising a peremptory challenge, and is subsequently
convicted by a jury on which no biased juror sat,” we have held, “he has
not been deprived of any . . . constitutional right.” United States v.
Martinez-Salazar, 528 U. S. 304, 307 (2000). Indeed, the “use [of] a
peremptory challenge to effect an instantaneous cure of the error”
exemplifies “a principal reason for peremptories: to help secure the
constitutional guarantee of trial by an impartial jury.” Id., at 316.
Cite as: 561 U. S. ____ (2010) 31
Opinion of the Court
Skilling contends that Juror 11—the only seated juror
he challenged for cause—“expressed the most obvious
bias.” Brief for Petitioner 35. See also post, at 36 (dis
sent). Juror 11 stated that “greed on Enron’s part” trig
gered the company’s bankruptcy and that corporate execu
tives, driven by avarice, “walk a line that stretches
sometimes the legality of something.” App. 854a–855a.
But, as the Fifth Circuit accurately summarized, Juror 11
“had ‘no idea’ whether Skilling had ‘crossed that line,’
and he ‘didn’t say that’ every CEO is probably a crook.
He also asserted that he could be fair and require the
government to prove its case, that he did not believe
everything he read in the paper, that he did not ‘get
into the details’ of the Enron coverage, that he did not
watch television, and that Enron was ‘old news.’ ” 554
F. 3d, at 563–564.
Despite his criticism of greed, Juror 11 remarked that
Skilling “earned [his] salar[y],” App. 857a, and said he
would have “no problem” telling his co-worker, who had
lost 401(k) funds due to Enron’s collapse, that the jury
voted to acquit, if that scenario came to pass, id., at 854a.
The District Court, noting that it had “looked [Juror 11] in
the eye and . . . heard all his [answers],” found his asser
tions of impartiality credible. Id., at 858a; cf. supra, at 29,
n. 30. We agree with the Court of Appeals that “[t]he
express finding that Juror 11 was fair is not reversible
error.” 554 F. 3d, at 564.32
Skilling also objected at trial to the seating of six spe
cific jurors whom, he said, he would have excluded had he
not already exhausted his peremptory challenges. See
supra, at 8–9. Juror 20, he observes, “said she was ‘angry’
about Enron’s collapse and that she, too, had been ‘forced
——————
32 Skilling’s trial counsel and jury consultants apparently did not
regard Juror 11 as so “obvious[ly] bias[ed],” Brief for Petitioner 35, as to
warrant exercise of a peremptory challenge.
32 SKILLING v. UNITED STATES
Opinion of the Court
to forfeit [her] own 401(k) funds to survive layoffs.’ ” Reply
Brief 13. But Juror 20 made clear during voir dire that
she did not “personally blame” Skilling for the loss of her
retirement account. App. 875a. Having not “pa[id] much
attention” to Enron-related news, she “quite honestly” did
not “have enough information to know” whether Skilling
was probably guilty, id., at 873a, and she “th[ought] [she]
could be” fair and impartial, id., at 875a. In light of these
answers, the District Court did not commit manifest error
in finding Juror 20 fit for jury service.
The same is true of Juror 63, who, Skilling points out,
wrote on her questionnaire “that [Skilling] ‘probably knew
[he] w[as] breaking the law.’ ” Reply Brief 13. During voir
dire, however, Juror 63 insisted that she did not “really
have an opinion [about Skilling’s guilt] either way,” App.
936a; she did not “know what [she] was thinking” when
she completed the questionnaire, but she “absolutely”
presumed Skilling innocent and confirmed her under
standing that the Government would “have to prove” his
guilt, id., at 937a. In response to follow-up questions from
Skilling’s counsel, she again stated she would not presume
that Skilling violated any laws and could “[a]bsolutely”
give her word that she could be fair. Id., at 937a–938a.
“Jurors,” we have recognized, “cannot be expected invaria
bly to express themselves carefully or even consistently.”
Yount, 467 U. S., at 1039. See also id., at 1040 (“It is here
that the federal [appellate] court’s deference must operate,
for while the cold record arouses some concern, only the
trial judge could tell which of these answers was said with
the greatest comprehension and certainty.”). From where
we sit, we cannot conclude that Juror 63 was biased.
The four remaining jurors Skilling said he would have
excluded with extra peremptory strikes exhibited no sign
of prejudice we can discern. See App. 891a–892a (Juror
38) (remembered no media coverage about Enron and said
nothing in her experience would prevent her from being
Cite as: 561 U. S. ____ (2010) 33
Opinion of the Court
fair and impartial); Supp. App. 131sa–133sa, 136sa (Juror
67) (had no connection to Enron and no anger about its
collapse); App. 969a (Juror 78) (did not “know much about”
Enron); Supp. App. 165sa, App. 971a (Juror 84) (had not
heard or read anything about Enron and said she did not
“know enough to answer” the question whether she was
angry about the company’s demise). Skilling’s counsel
declined to ask follow-up questions of any of these jurors
and, indeed, told Juror 84 he had nothing to ask because
she “gave all the right answers.” Id., at 972a. Whatever
Skilling’s reasons for wanting to strike these four indi
viduals from his jury, he cannot credibly assert they dis
played a disqualifying bias.33
In sum, Skilling failed to establish that a presumption
of prejudice arose or that actual bias infected the jury that
tried him. Jurors, the trial court correctly comprehended,
need not enter the box with empty heads in order to de
termine the facts impartially. “It is sufficient if the ju
ror[s] can lay aside [their] impression[s] or opinion[s] and
render a verdict based on the evidence presented in court.”
Irvin, 366 U. S., at 723. Taking account of the full record,
rather than incomplete exchanges selectively culled from
it, we find no cause to upset the lower courts’ judgment
that Skilling’s jury met that measure. We therefore affirm
the Fifth Circuit’s ruling that Skilling received a fair
trial.34
——————
33 Although Skilling raised no objection to Juror 10 and Juror 87 at
trial, his briefs in this Court impugn their impartiality. Brief for
Petitioner 14–15; Reply Brief 13. Even if we allowed these tardy pleas,
the voir dire testimony of the two jurors gives sufficient assurance that
they were unbiased. See, e.g., App. 850a–853a (Juror 10) (did not
prejudge Skilling’s guilt, indicated he could follow the court’s instruc
tions and make the Government prove its case, stated he could be fair
to Skilling, and said he would “judge on the facts”); id., at 974a (Juror
87) (had “not formed an opinion” on whether Skilling was guilty and
affirmed she could adhere to the presumption of innocence).
34 Our decisions have rightly set a high bar for allegations of juror
34 SKILLING v. UNITED STATES
Opinion of the Court
III
We next consider whether Skilling’s conspiracy convic
tion was premised on an improper theory of honest
services wire fraud. The honest-services statute, §1346,
Skilling maintains, is unconstitutionally vague. Alterna
tively, he contends that his conduct does not fall within
the statute’s compass.
A
To place Skilling’s constitutional challenge in context,
we first review the origin and subsequent application of
the honest-services doctrine.
1
Enacted in 1872, the original mail-fraud provision, the
predecessor of the modern-day mail- and wire-fraud laws,
proscribed, without further elaboration, use of the mails to
advance “any scheme or artifice to defraud.” See McNally
v. United States, 483 U. S. 350, 356 (1987). In 1909, Con
gress amended the statute to prohibit, as it does today,
“any scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises.” §1341 (emphasis added); see
id., at 357–358. Emphasizing Congress’ disjunctive phras
ing, the Courts of Appeals, one after the other, interpreted
the term “scheme or artifice to defraud” to include depri
vations not only of money or property, but also of intangi
ble rights.
In an opinion credited with first presenting the intangi
——————
prejudice due to pretrial publicity. See, e.g., Mu’Min, 500 U. S. 415;
Patton v. Yount, 467 U. S. 1025 (1984); Murphy v. Florida, 421 U. S.
794 (1975). News coverage of civil and criminal trials of public interest
conveys to society at large how our justice system operates. And it is a
premise of that system that jurors will set aside their preconceptions
when they enter the courtroom and decide cases based on the evidence
presented. Trial judges generally take care so to instruct jurors, and
the District Court did just that in this case. App. 1026a.
Cite as: 561 U. S. ____ (2010) 35
Opinion of the Court
ble-rights theory, Shushan v. United States, 117 F. 2d 110
(1941), the Fifth Circuit reviewed the mail-fraud prosecu
tion of a public official who allegedly accepted bribes from
entrepreneurs in exchange for urging city action beneficial
to the bribe payers. “It is not true that because the [city]
was to make and did make a saving by the operations
there could not have been an intent to defraud,” the Court
of Appeals maintained. Id., at 119. “A scheme to get a
public contract on more favorable terms than would likely
be got otherwise by bribing a public official,” the court
observed, “would not only be a plan to commit the crime of
bribery, but would also be a scheme to defraud the public.”
Id., at 115.
The Fifth Circuit’s opinion in Shushan stimulated the
development of an “honest-services” doctrine. Unlike
fraud in which the victim’s loss of money or property
supplied the defendant’s gain, with one the mirror image
of the other, see, e.g., United States v. Starr, 816 F. 2d 94,
101 (CA2 1987), the honest-services theory targeted cor
ruption that lacked similar symmetry. While the offender
profited, the betrayed party suffered no deprivation of
money or property; instead, a third party, who had not
been deceived, provided the enrichment. For example, if a
city mayor (the offender) accepted a bribe from a third
party in exchange for awarding that party a city contract,
yet the contract terms were the same as any that could
have been negotiated at arm’s length, the city (the be
trayed party) would suffer no tangible loss. Cf. McNally,
483 U. S., at 360. Even if the scheme occasioned a money
or property gain for the betrayed party, courts reasoned,
actionable harm lay in the denial of that party’s right to
the offender’s “honest services.” See, e.g., United States v.
Dixon, 536 F. 2d 1388, 1400 (CA2 1976).
“Most often these cases . . . involved bribery of public
officials,” United States v. Bohonus, 628 F. 2d 1167, 1171
(CA9 1980), but courts also recognized private-sector
36 SKILLING v. UNITED STATES
Opinion of the Court
honest-services fraud. In perhaps the earliest application
of the theory to private actors, a District Court, reviewing
a bribery scheme, explained:
“When one tampers with [the employer-employee] re
lationship for the purpose of causing the employee to
breach his duty [to his employer,] he in effect is de
frauding the employer of a lawful right. The actual
deception that is practised is in the continued repre
sentation of the employee to the employer that he is
honest and loyal to the employer’s interests.” United
States v. Procter & Gamble Co., 47 F. Supp. 676, 678
(Mass. 1942).
Over time, “[a]n increasing number of courts” recognized
that “a recreant employee”—public or private—“c[ould] be
prosecuted under [the mail-fraud statute] if he breache[d]
his allegiance to his employer by accepting bribes or kick
backs in the course of his employment,” United States v.
McNeive, 536 F. 2d 1245, 1249 (CA8 1976); by 1982, all
Courts of Appeals had embraced the honest-services the
ory of fraud, Hurson, Limiting the Federal Mail Fraud
Statute—A Legislative Approach, 20 Am. Crim. L. Rev.
423, 456 (1983).35
2
In 1987, this Court, in McNally v. United States,
stopped the development of the intangible-rights doctrine
in its tracks. McNally involved a state officer who, in
selecting Kentucky’s insurance agent, arranged to procure
a share of the agent’s commissions via kickbacks paid to
——————
35 In addition to upholding honest-services prosecutions, courts also
increasingly approved use of the mail-fraud statute to attack corruption
that deprived victims of other kinds of intangible rights, including
election fraud and privacy violations. See, e.g., Cleveland v. United
States, 531 U. S. 12, 18, n. 2 (2000); McNally v. United States, 483 U. S.
350, 362–364, and nn. 1–4 (1987) (STEVENS, J., dissenting).
Cite as: 561 U. S. ____ (2010) 37
Opinion of the Court
companies the official partially controlled. 483 U. S., at
360. The prosecutor did not charge that, “in the absence of
the alleged scheme[,] the Commonwealth would have paid
a lower premium or secured better insurance.” Ibid. In
stead, the prosecutor maintained that the kickback
scheme “defraud[ed] the citizens and government of Ken
tucky of their right to have the Commonwealth’s affairs
conducted honestly.” Id., at 353.
We held that the scheme did not qualify as mail fraud.
“Rather than constru[ing] the statute in a manner that
leaves its outer boundaries ambiguous and involves the
Federal Government in setting standards of disclosure and
good government for local and state officials,” we read the
statute “as limited in scope to the protection of property
rights.” Id., at 360. “If Congress desires to go further,” we
stated, “it must speak more clearly.” Ibid.
3
Congress responded swiftly. The following year, it
enacted a new statute “specifically to cover one of the
‘intangible rights’ that lower courts had protected . . . prior
to McNally: ‘the intangible right of honest services.’ ”
Cleveland v. United States, 531 U. S. 12, 19–20 (2000). In
full, the honest-services statute stated:
“For the purposes of th[e] chapter [of the United
States Code that prohibits, inter alia, mail fraud,
§1341, and wire fraud, §1343], the term ‘scheme or
artifice to defraud’ includes a scheme or artifice to
deprive another of the intangible right of honest ser
vices.” §1346.
B
Congress, Skilling charges, reacted quickly but not
clearly: He asserts that §1346 is unconstitutionally vague.
To satisfy due process, “a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordi
38 SKILLING v. UNITED STATES
Opinion of the Court
nary people can understand what conduct is prohibited
and [2] in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461
U. S. 352, 357 (1983). The void-for-vagueness doctrine
embraces these requirements.
According to Skilling, §1346 meets neither of the two
due process essentials. First, the phrase “the intangible
right of honest services,” he contends, does not adequately
define what behavior it bars. Brief for Petitioner 38–39.
Second, he alleges, §1346’s “standardless sweep allows
policemen, prosecutors, and juries to pursue their personal
predilections,” thereby “facilitat[ing] opportunistic and
arbitrary prosecutions.” Id., at 44 (quoting Kolender, 461
U. S., at 358).
In urging invalidation of §1346, Skilling swims against
our case law’s current, which requires us, if we can, to
construe, not condemn, Congress’ enactments. See, e.g.,
Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 571
(1973). See also United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963) (stressing, in response to a
vagueness challenge, “[t]he strong presumptive validity
that attaches to an Act of Congress”). Alert to §1346’s
potential breadth, the Courts of Appeals have divided on
how best to interpret the statute.36 Uniformly, however,
they have declined to throw out the statute as irremedia
——————
36 Courts have disagreed about whether §1346 prosecutions must be
based on a violation of state law, compare, e.g., United States v. Brum
ley, 116 F. 3d 728, 734–735 (CA5 1997) (en banc), with, e.g., United
States v. Weyhrauch, 548 F. 3d 1237, 1245–1246 (CA9 2008), vacated
and remanded, post, p. ___; whether a defendant must contemplate that
the victim suffer economic harm, compare, e.g., United States v. Sun-
Diamond Growers of Cal., 138 F. 3d 961, 973 (CADC 1998), with, e.g.,
United States v. Black, 530 F. 3d 596, 600–602 (CA7 2008), vacated and
remanded, post, p. ___; and whether the defendant must act in pursuit
of private gain, compare, e.g., United States v. Bloom, 149 F. 3d 649,
655 (CA7 1998), with, e.g., United States v. Panarella, 277 F. 3d 678,
692 (CA3 2002).
Cite as: 561 U. S. ____ (2010) 39
Opinion of the Court
bly vague.37
We agree that §1346 should be construed rather than
invalidated. First, we look to the doctrine developed in
pre-McNally cases in an endeavor to ascertain the mean
ing of the phrase “the intangible right of honest services.”
Second, to preserve what Congress certainly intended the
statute to cover, we pare that body of precedent down to
its core: In the main, the pre-McNally cases involved
fraudulent schemes to deprive another of honest services
through bribes or kickbacks supplied by a third party who
had not been deceived. Confined to these paramount
applications, §1346 presents no vagueness problem.
1
There is no doubt that Congress intended §1346 to refer
to and incorporate the honest-services doctrine recognized
in Court of Appeals’ decisions before McNally derailed the
intangible-rights theory of fraud. See Brief for Petitioner
39; Brief for United States 37–38; post, at 2, 8 (SCALIA, J.,
concurring in part and concurring in judgment). Congress
enacted §1346 on the heels of McNally and drafted the
statute using that decision’s terminology. See 483 U. S.,
at 355 (“intangible righ[t]”); id., at 362 (STEVENS, J., dis
senting) (“right to . . . honest services”).38 As the Second
——————
37 See, e.g., United States v. Rybicki, 354 F. 3d 124, 132 (CA2 2003)
(en banc); United States v. Hausmann, 345 F. 3d 952, 958 (CA7 2003);
United States v. Welch, 327 F. 3d 1081, 1109, n. 29 (CA10 2003); United
States v. Frega, 179 F. 3d 793, 803 (CA9 1999); Brumley, 116 F. 3d, at
732–733; United States v. Frost, 125 F. 3d 346, 370–372 (CA6 1997);
United States v. Waymer, 55 F. 3d 564, 568–569 (CA11 1995); United
States v. Bryan, 58 F. 3d 933, 941 (CA4 1995).
38 Although verbal formulations varied slightly, the words employed
by the Courts of Appeals prior to McNally described the same concept:
“honest services,” e.g., United States v. Bruno, 809 F. 2d 1097, 1105
(CA5 1987); “honest and faithful services,” e.g., United States v. Brown,
540 F. 2d 364, 374 (CA8 1976); and “faithful and honest services,” e.g.,
United States v. Diggs, 613 F. 2d 988, 998 (CADC 1979).
40 SKILLING v. UNITED STATES
Opinion of the Court
Circuit observed in its leading analysis of §1346:
“The definite article ‘the’ suggests that ‘intangible
right of honest services’ had a specific meaning to
Congress when it enacted the statute—Congress was
recriminalizing mail- and wire-fraud schemes to de
prive others of that ‘intangible right of honest ser
vices,’ which had been protected before McNally, not
all intangible rights of honest services whatever they
might be thought to be.” United States v. Rybicki, 354
F. 3d 124, 137–138 (2003) (en banc).39
2
Satisfied that Congress, by enacting §1346, “meant to
reinstate the body of pre-McNally honest-services law,”
post, at 8 (opinion of SCALIA, J.), we have surveyed that
case law. See infra, at 42–44, 46. In parsing the Courts of
Appeals decisions, we acknowledge that Skilling’s vague
ness challenge has force, for honest-services decisions
preceding McNally were not models of clarity or consis
tency. See Brief for Petitioner 39–42 (describing divisions
of opinions). See also post, at 3–7 (opinion of SCALIA, J.).
While the honest-services cases preceding McNally domi
nantly and consistently applied the fraud statute to brib
ery and kickback schemes—schemes that were the basis of
most honest-services prosecutions—there was consider
able disarray over the statute’s application to conduct
outside that core category. In light of this disarray, Skill
ing urges us, as he urged the Fifth Circuit, to invalidate
the statute in toto. Brief for Petitioner 48 (Section 1346 “is
——————
39 We considered a similar Court-Congress interplay in McDermott
Int’l, Inc. v. Wilander, 498 U. S. 337 (1991), which involved the inter
pretation of the term “seaman” in the Jones Act, 46 U. S. C. App. §688
(2000 ed.). The Act, we recognized, “respond[ed] directly to” our deci
sion in The Osceola, 189 U. S. 158 (1903), and “adopt[ed] without
further elaboration the term used in” that case, so we “assume[d] that
the Jones Act use[d] ‘seaman’ in the same way.” 498 U. S., at 342.
Cite as: 561 U. S. ____ (2010) 41
Opinion of the Court
intolerably and unconstitutionally vague.”); Brief of De
fendant-Appellant Jeffrey K. Skilling in No. 06–20885
(CA5), p. 65, n. 21 (“[S]ection 1346 should be invalidated
as unlawfully vague on its face.”).
It has long been our practice, however, before striking
a federal statute as impermissibly vague, to consider
whether the prescription is amenable to a limiting con
struction. See, e.g., Hooper v. California, 155 U. S. 648,
657 (1895) (“The elementary rule is that every reasonable
construction must be resorted to, in order to save a statute
from unconstitutionality.” (emphasis added)). See also
Boos v. Barry, 485 U. S. 312, 330–331 (1988); Schneider v.
Smith, 390 U. S. 17, 26 (1968).40 We have accordingly
instructed “the federal courts . . . to avoid constitutional
difficulties by [adopting a limiting interpretation] if such a
construction is fairly possible.” Boos, 485 U. S., at 331; see
United States v. Harriss, 347 U. S. 612, 618 (1954) (“[I]f
——————
40 “This cardinal principle has its roots in Chief Justice Marshall’s
opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64,
118 (1804), and has for so long been applied by this Court that it is
beyond debate.” Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). See, e.g.,
New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); NLRB v. Catholic
Bishop of Chicago, 440 U. S. 490, 500–501 (1979); United States v.
Thirty-seven Photographs, 402 U. S. 363, 368–370 (1971); Machinists v.
Street, 367 U. S. 740, 749–750 (1961); United States v. Rumely, 345
U. S. 41, 45 (1953); Winters v. New York, 333 U. S. 507, 517 (1948);
Crowell v. Benson, 285 U. S. 22, 62 (1932); Lucas v. Alexander, 279
U. S. 573, 577 (1929); Richmond Screw Anchor Co. v. United States, 275
U. S. 331, 346 (1928); Panama R. Co. v. Johnson, 264 U. S. 375, 390
(1924); United States ex rel. Attorney General v. Delaware & Hudson
Co., 213 U. S. 366, 407–408 (1909); United States v. Coombs, 12 Pet. 72,
76 (1838) (Story, J.); Parsons v. Bedford, 3 Pet. 433, 448–449 (1830)
(Story, J.). Cf. Chaplinsky v. New Hampshire, 315 U. S. 568, 573 (1942)
(statute made it criminal to address “any offensive, derisive, or annoy
ing word” to any person in a public place; vagueness obviated by state
court construction of the statute to cover only words having “a direct
tendency to cause acts of violence” by the addressee (internal quotation
marks omitted)).
42 SKILLING v. UNITED STATES
Opinion of the Court
the general class of offenses to which the statute is di
rected is plainly within its terms, the statute will not be
struck down as vague . . . . And if this general class of
offenses can be made constitutionally definite by a reason
able construction of the statute, this Court is under a duty
to give the statute that construction.”).
Arguing against any limiting construction, Skilling
contends that it is impossible to identify a salvageable
honest-services core; “the pre-McNally caselaw,” he as
serts, “is a hodgepodge of oft-conflicting holdings” that are
“hopelessly unclear.” Brief for Petitioner 39 (some capi
talization and italics omitted). We have rejected an argu
ment of the same tenor before. In Civil Service Comm’n v.
Letter Carriers, federal employees challenged a provision
of the Hatch Act that incorporated earlier decisions of the
United States Civil Service Commission enforcing a simi
lar law. “[T]he several thousand adjudications of the Civil
Service Commission,” the employees maintained, were “an
impenetrable jungle”—“undiscoverable, inconsistent, [and]
incapable of yielding any meaningful rules to govern
present or future conduct.” 413 U. S., at 571. Mindful
that “our task [wa]s not to destroy the Act if we c[ould],
but to construe it,” we held that “the rules that had
evolved over the years from repeated adjudications were
subject to sufficiently clear and summary statement.” Id.,
at 571–572.
A similar observation may be made here. Although
some applications of the pre-McNally honest-services
doctrine occasioned disagreement among the Courts of
Appeals, these cases do not cloud the doctrine’s solid core:
The “vast majority” of the honest-services cases involved
offenders who, in violation of a fiduciary duty, participated
in bribery or kickback schemes. United States v. Runnels,
833 F. 2d 1183, 1187 (CA6 1987); see Brief for United
Cite as: 561 U. S. ____ (2010) 43
Opinion of the Court
States 42, and n. 4 (citing dozens of examples).41 Indeed,
the McNally case itself, which spurred Congress to enact
§1346, presented a paradigmatic kickback fact pattern.
483 U. S., at 352–353, 360. Congress’ reversal of McNally
and reinstatement of the honest-services doctrine, we
conclude, can and should be salvaged by confining its
scope to the core pre-McNally applications.
As already noted, supra, at 34–36, the honest-services
doctrine had its genesis in prosecutions involving bribery
allegations. See Shushan, 117 F. 2d, at 115 (public sec
tor); Procter & Gamble Co., 47 F. Supp., at 678 (private
sector). See also United States v. Orsburn, 525 F. 3d 543,
546 (CA7 2008). Both before McNally and after §1346’s
enactment, Courts of Appeals described schemes involving
bribes or kickbacks as “core . . . honest services fraud
precedents,” United States v. Czubinski, 106 F. 3d 1069,
1077 (CA1 1997); “paradigm case[s],” United States v.
deVegter, 198 F. 3d 1324, 1327–1328 (CA11 1999); “[t]he
most obvious form of honest services fraud,” United States
v. Carbo, 572 F. 3d 112, 115 (CA3 2009); “core misconduct
covered by the statute,” United States v. Urciuoli, 513
F. 3d 290, 294 (CA1 2008); “most [of the] honest services
cases,” United States v. Sorich, 523 F. 3d 702, 707 (CA7
2008); “typical,” United States v. Brown, 540 F. 2d 364,
374 (CA8 1976); “clear-cut,” United States v. Mandel, 591
F. 2d 1347, 1363 (CA4 1979); and “uniformly . . .
——————
41 JUSTICE SCALIA emphasizes divisions in the Courts of Appeals re
garding the source and scope of fiduciary duties. Post, at 3–5. But
these debates were rare in bribe and kickback cases. The existence of a
fiduciary relationship, under any definition of that term, was usually
beyond dispute; examples include public official-public, see, e.g., United
States v. Mandel, 591 F. 2d 1347 (CA4 1979); employee-employer, see,
e.g., United States v. Bohonus, 628 F. 2d 1167 (CA9 1980); and union
official-union members, see, e.g., United States v. Price, 788 F. 2d 234
(CA4 1986). See generally Chiarella v. United States, 445 U. S. 222,
233 (1980) (noting the “established doctrine that [a fiduciary] duty
arises from a specific relationship between two parties”).
44 SKILLING v. UNITED STATES
Opinion of the Court
cover[ed],” United States v. Paradies, 98 F. 3d 1266, 1283,
n. 30 (CA11 1996). See also Tr. of Oral Arg. 43 (counsel
for the Government) (“[T]he bulk of pre-McNally honest
services cases” entailed bribes or kickbacks); Brief for
Petitioner 49 (“Bribes and kickbacks were the paradigm
[pre-McNally] cases,” constituting “[t]he overwhelming
majority of prosecutions for honest services fraud.”).
In view of this history, there is no doubt that Congress
intended §1346 to reach at least bribes and kickbacks.
Reading the statute to proscribe a wider range of offensive
conduct, we acknowledge, would raise the due process
concerns underlying the vagueness doctrine.42 To preserve
the statute without transgressing constitutional limita
tions, we now hold that §1346 criminalizes only the bribe
and-kickback core of the pre-McNally case law.43
——————
42 Apprised that a broader reading of §1346 could render the statute
impermissibly vague, Congress, we believe, would have drawn the
honest-services line, as we do now, at bribery and kickback schemes.
Cf. Levin v. Commerce Energy, Inc., 560 U. S. ___, ___ (2010) (slip op.,
at 11) (“[C]ourts may attempt . . . to implement what the legislature
would have willed had it been apprised of the constitutional infir
mity.”); United States v. Booker, 543 U. S. 220, 246 (2005) (“We seek to
determine what ‘Congress would have intended’ in light of the Court’s
constitutional holding.”).
43 JUSTICE SCALIA charges that our construction of §1346 is “not inter
pretation but invention.” Post, at 8. Stating that he “know[s] of no
precedent for . . . ‘paring down’ ” the pre-McNally case law to its core,
ibid., he contends that the Court today “wield[s] a power we long ago
abjured: the power to define new federal crimes,” post, at 1. See also,
e.g., post, at 9, 10, 11. As noted supra, at 41–42, and n. 40, cases
“paring down” federal statutes to avoid constitutional shoals are legion.
These cases recognize that the Court does not legislate, but instead
respects the legislature, by preserving a statute through a limiting
interpretation. See United States v. Lanier, 520 U. S. 259, 267–268,
n. 6 (1997) (This Court does not “create a common law crime” by adopt
ing a “narrow[ing] constru[ction].” (internal quotation marks omitted));
supra this page, n. 42. Given that the Courts of Appeals uniformly
recognized bribery and kickback schemes as honest-services fraud
before McNally, 483 U. S. 350, and that these schemes composed the
Cite as: 561 U. S. ____ (2010) 45
Opinion of the Court
3
The Government urges us to go further by locating
within §1346’s compass another category of proscribed
conduct: “undisclosed self-dealing by a public official or
private employee—i.e., the taking of official action by the
employee that furthers his own undisclosed financial
interests while purporting to act in the interests of those
to whom he owes a fiduciary duty.” Id., at 43–44. “[T]he
theory of liability in McNally itself was nondisclosure of a
conflicting financial interest,” the Government observes,
and “Congress clearly intended to revive th[at] nondisclo
sure theory.” Id., at 44. Moreover, “[a]lthough not as
numerous as the bribery and kickback cases,” the Gov
ernment asserts, “the pre-McNally cases involving undis
closed self-dealing were abundant.” Ibid.
Neither of these contentions withstands close inspec
tion. McNally, as we have already observed, supra, at 36–
37, 43, involved a classic kickback scheme: A public offi
cial, in exchange for routing Kentucky’s insurance busi
ness through a middleman company, arranged for that
company to share its commissions with entities in which
the official held an interest. 483 U. S., at 352–353, 360.
This was no mere failure to disclose a conflict of interest;
rather, the official conspired with a third party so that
both would profit from wealth generated by public con
tracts. See id., at 352–353. Reading §1346 to proscribe
bribes and kickbacks—and nothing more—satisfies Con
——————
lion’s share of honest-services cases, limiting §1346 to these heartland
applications is surely “fairly possible.” Boos v. Barry, 485 U. S. 312,
331 (1988); cf. Clark v. Martinez, 543 U. S. 371, 380 (2005) (opinion of
the Court by SCALIA, J.) (when adopting a limiting construction, “[t]he
lowest common denominator, as it were, must govern”). So construed,
the statute is not unconstitutionally vague. See infra, at 47–48; post, at
8. Only by taking a wrecking ball to a statute that can be salvaged
through a reasonable narrowing interpretation would we act out of step
with precedent.
46 SKILLING v. UNITED STATES
Opinion of the Court
gress’ undoubted aim to reverse McNally on its facts.
Nor are we persuaded that the pre-McNally conflict-of
interest cases constitute core applications of the honest
services doctrine. Although the Courts of Appeals upheld
honest-services convictions for “some schemes of non
disclosure and concealment of material information,”
Mandel, 591 F. 2d, at 1361, they reached no consensus on
which schemes qualified. In light of the relative infre
quency of conflict-of-interest prosecutions in comparison to
bribery and kickback charges, and the intercircuit incon
sistencies they produced, we conclude that a reasonable
limiting construction of §1346 must exclude this amor
phous category of cases.
Further dispelling doubt on this point is the familiar
principle that “ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity.” Cleveland,
531 U. S., at 25 (quoting Rewis v. United States, 401 U. S.
808, 812 (1971)). “This interpretive guide is especially
appropriate in construing [§1346] because . . . mail [and
wire] fraud [are] predicate offense[s] under [the Racketeer
Influenced and Corrupt Organizations Act], 18 U. S. C.
§1961(1) (1994 ed., Supp. IV), and the money laundering
statute, §1956(c)(7)(A).” Cleveland, 531 U. S., at 25.
Holding that honest-services fraud does not encompass
conduct more wide-ranging than the paradigmatic cases of
bribes and kickbacks, we resist the Government’s less
constrained construction absent Congress’ clear instruc
tion otherwise. E.g., United States v. Universal C. I. T.
Credit Corp., 344 U. S. 218, 221–222 (1952).
In sum, our construction of §1346 “establish[es] a uni
form national standard, define[s] honest services with
clarity, reach[es] only seriously culpable conduct, and
accomplish[es] Congress’s goal of ‘overruling’ McNally.”
Brief for Albert W. Alschuler as Amicus Curiae in Wey
hrauch v. United States, O. T. 2009, No. 08–1196, pp. 28–
29. “If Congress desires to go further,” we reiterate, “it
Cite as: 561 U. S. ____ (2010) 47
Opinion of the Court
must speak more clearly than it has.” McNally, 483 U. S.,
at 360.44
4
Interpreted to encompass only bribery and kickback
schemes, §1346 is not unconstitutionally vague. Recall
that the void-for-vagueness doctrine addresses concerns
about (1) fair notice and (2) arbitrary and discriminatory
prosecutions. See Kolender, 461 U. S., at 357. A prohibi
tion on fraudulently depriving another of one’s honest
services by accepting bribes or kickbacks does not present
a problem on either score.
As to fair notice, “whatever the school of thought con
cerning the scope and meaning of ” §1346, it has always
been “as plain as a pikestaff that” bribes and kickbacks
constitute honest-services fraud, Williams v. United
States, 341 U. S. 97, 101 (1951), and the statute’s mens rea
requirement further blunts any notice concern, see, e.g.,
Screws v. United States, 325 U. S. 91, 101–104 (1945)
(plurality opinion). See also Broadrick v. Oklahoma, 413
U. S. 601, 608 (1973) (“[E]ven if the outermost boundaries
——————
44 If Congress were to take up the enterprise of criminalizing “undis
closed self-dealing by a public official or private employee,” Brief for
United States 43, it would have to employ standards of sufficient
definiteness and specificity to overcome due process concerns. The
Government proposes a standard that prohibits the “taking of official
action by the employee that furthers his own undisclosed financial
interests while purporting to act in the interests of those to whom he
owes a fiduciary duty,” so long as the employee acts with a specific
intent to deceive and the undisclosed conduct could influence the victim
to change its behavior. Id., at 43–44. See also id., at 40–41. That
formulation, however, leaves many questions unanswered. How direct
or significant does the conflicting financial interest have to be? To
what extent does the official action have to further that interest in
order to amount to fraud? To whom should the disclosure be made and
what information should it convey? These questions and others call for
particular care in attempting to formulate an adequate criminal prohi
bition in this context.
48 SKILLING v. UNITED STATES
Opinion of the Court
of [a statute are] imprecise, any such uncertainty has little
relevance . . . where appellants’ conduct falls squarely
within the ‘hard core’ of the statute’s proscriptions.”).
Today’s decision clarifies that no other misconduct falls
within §1346’s province. See United States v. Lanier, 520
U. S. 259, 266 (1997) (“[C]larity at the requisite level may
be supplied by judicial gloss on an otherwise uncertain
statute.”).
As to arbitrary prosecutions, we perceive no significant
risk that the honest-services statute, as we interpret it
today, will be stretched out of shape. Its prohibition on
bribes and kickbacks draws content not only from the pre-
McNally case law, but also from federal statutes proscrib
ing—and defining—similar crimes. See, e.g., 18 U. S. C.
§§201(b), 666(a)(2); 41 U. S. C. §52(2) (“The term ‘kick
back’ means any money, fee, commission, credit, gift,
gratuity, thing of value, or compensation of any kind
which is provided, directly or indirectly, to [enumerated
persons] for the purpose of improperly obtaining or re
warding favorable treatment in connection with [enumer
ated circumstances].”).45 See also, e.g., United States v.
Ganim, 510 F. 3d 134, 147–149 (CA2 2007) (Sotomayor, J.)
(reviewing honest-services conviction involving bribery in
light of elements of bribery under other federal statutes);
United States v. Whitfield, 590 F. 3d 325, 352–353 (CA5
2009); United States v. Kemp, 500 F. 3d 257, 281–286
(CA3 2007). A criminal defendant who participated in
a bribery or kickback scheme, in short, cannot tenably
complain about prosecution under §1346 on vagueness
grounds.
——————
45 Overlap with other federal statutes does not render §1346 superflu
ous. The principal federal bribery statute, §201, for example, generally
applies only to federal public officials, so §1346’s application to state
and local corruption and to private-sector fraud reaches misconduct
that might otherwise go unpunished.
Cite as: 561 U. S. ____ (2010)
49
Opinion of the Court
C
It remains to determine whether Skilling’s conduct
violated §1346. Skilling’s honest-services prosecution, the
Government concedes, was not “prototypical.” Brief for
United States 49. The Government charged Skilling with
conspiring to defraud Enron’s shareholders by misrepre
senting the company’s fiscal health, thereby artificially
inflating its stock price. It was the Government’s theory
at trial that Skilling “profited from the fraudulent scheme
. . . through the receipt of salary and bonuses, . . . and
through the sale of approximately $200 million in Enron
stock, which netted him $89 million.” Id., at 51.
The Government did not, at any time, allege that Skill
ing solicited or accepted side payments from a third party
in exchange for making these misrepresentations. See
Record 41328 (May 11, 2006 Letter from the Government
to the District Court) (“[T]he indictment does not allege,
and the government’s evidence did not show, that [Skill
ing] engaged in bribery.”). It is therefore clear that, as we
read §1346, Skilling did not commit honest-services fraud.
Because the indictment alleged three objects of the con-
spiracy—honest-services wire fraud, money-or-property
wire fraud, and securities fraud—Skilling’s conviction
is flawed. See Yates v. United States, 354 U. S. 298
(1957) (constitutional error occurs when a jury is in
structed on alternative theories of guilt and returns a
general verdict that may rest on a legally invalid theory).
This determination, however, does not necessarily require
reversal of the conspiracy conviction; we recently con
firmed, in Hedgpeth v. Pulido, 555 U. S. ___ (2008) (per
curiam), that errors of the Yates variety are subject to
harmless-error analysis. The parties vigorously dispute
whether the error was harmless. Compare Brief for
United States 52 (“[A]ny juror who voted for conviction
based on [the honest-services theory] also would have
found [Skilling] guilty of conspiring to commit securities
50 SKILLING v. UNITED STATES
Opinion of the Court
fraud.”) with Reply Brief 30 (The Government “cannot
show that the conspiracy conviction rested only on the
securities-fraud theory, rather than the distinct, legally
flawed honest-services theory.”). We leave this dispute for
resolution on remand.46
Whether potential reversal on the conspiracy count
touches any of Skilling’s other convictions is also an open
question. All of his convictions, Skilling contends, hinged
on the conspiracy count and, like dominoes, must fall if it
falls. The District Court, deciding Skilling’s motion for
bail pending appeal, found this argument dubious, App.
1141a–1142a, but the Fifth Circuit had no occasion to rule
on it. That court may do so on remand.
* * *
For the foregoing reasons, we affirm the Fifth Circuit’s
ruling on Skilling’s fair-trial argument, vacate its ruling
on his conspiracy conviction, and remand the case for
proceedings consistent with this opinion.
It is so ordered.
——————
46 The Fifth Circuit appeared to prejudge this issue, noting that, “if
any of the three objects of Skilling’s conspiracy offers a legally insuffi
cient theory,” it “must set aside his conviction.” 554 F. 3d, at 543. That
reasoning relied on the mistaken premise that Hedgpeth v. Pulido, 555
U. S. ___ (2008) (per curiam), governs only cases on collateral review.
See 554 F. 3d, at 543, n. 10. Harmless-error analysis, we clarify,
applies equally to cases on direct appeal. Accordingly, the Fifth Circuit,
on remand, should take a fresh look at the parties’ harmless-error
arguments.
Cite as: 561 U. S. ____ (2010) 1
Opinion of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1394
_________________
JEFFREY K. SKILLING, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2010]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and
with whom JUSTICE KENNEDY joins except as to Part III,
concurring in part and concurring in the judgment.
I agree with the Court that petitioner Jeffrey Skilling’s
challenge to the impartiality of his jury and to the District
Court’s conduct of the voir dire fails. I therefore join Parts
I and II of the Court’s opinion. I also agree that the deci
sion upholding Skilling’s conviction for so-called “honest
services fraud” must be reversed, but for a different rea
son. In my view, the specification in 18 U. S. C. §1346
(2006 ed., Supp. II) that “scheme or artifice to defraud” in
the mail-fraud and wire-fraud statutes, §§1341 and 1343
(2006 ed.), includes “a scheme or artifice to deprive an
other of the intangible right of honest services,” is vague,
and therefore violates the Due Process Clause of the Fifth
Amendment. The Court strikes a pose of judicial humility
in proclaiming that our task is “not to destroy the Act . . .
but to construe it,” ante, at 42 (internal quotation marks
omitted). But in transforming the prohibition of “honest
services fraud” into a prohibition of “bribery and kick
backs” it is wielding a power we long ago abjured: the
power to define new federal crimes. See United States v.
Hudson, 7 Cranch 32, 34 (1812).
2 SKILLING v. UNITED STATES
Opinion of SCALIA, J.
I
A criminal statute must clearly define the conduct it
proscribes, see Grayned v. City of Rockford, 408 U. S. 104,
108 (1972). A statute that is unconstitutionally vague
cannot be saved by a more precise indictment, see Lan
zetta v. New Jersey, 306 U. S. 451, 453 (1939), nor by
judicial construction that writes in specific criteria that its
text does not contain, see United States v. Reese, 92 U. S.
214, 219–221 (1876). Our cases have described vague
statutes as failing “to provide a person of ordinary intelli
gence fair notice of what is prohibited, or [as being] so
standardless that [they] authoriz[e] or encourag[e] seri
ously discriminatory enforcement.” United States v. Wil
liams, 553 U. S. 285, 304 (2008). Here, Skilling argues
that §1346 fails to provide fair notice and encourages
arbitrary enforcement because it provides no definition of
the right of honest services whose deprivation it prohibits.
Brief for Petitioner 38–39, 42–44. In my view Skilling is
correct.
The Court maintains that “the intangible right of honest
services ” means the right not to have one’s fiduciaries
accept “bribes or kickbacks.” Its first step in reaching
that conclusion is the assertion that the phrase refers to
“the doctrine developed” in cases decided by lower federal
courts prior to our decision in McNally v. United States,
483 U. S. 350 (1987). Ante, at 39. I do not contest that. I
agree that Congress used the novel phrase to adopt the
lower-court case law that had been disapproved by
McNally—what the Court calls “the pre-McNally honest
services doctrine,” ante, at 42. The problem is that that
doctrine provides no “ascertainable standard of guilt,”
United States v. L. Cohen Grocery Co., 255 U. S. 81, 89
(1921), and certainly is not limited to “bribes or kick
backs.”
Investigation into the meaning of “the pre-McNally
honest-services doctrine” might logically begin with
Cite as: 561 U. S. ____ (2010) 3
Opinion of SCALIA, J.
McNally itself, which rejected it. That case repudiated the
many Court of Appeals holdings that had expanded the
meaning of “fraud” in the mail-fraud and wire-fraud stat
utes beyond deceptive schemes to obtain property. 483
U. S., at 360. If the repudiated cases stood for a prohibi
tion of “bribery and kickbacks,” one would have expected
those words to appear in the opinion’s description of the
cases. In fact, they do not. Not at all. Nor did McNally
even provide a consistent definition of the pre-existing
theory of fraud it rejected. It referred variously to a right
of citizens “to have the [State]’s affairs conducted hon
estly,” id., at 353, to “honest and impartial government,”
id., at 355, to “good government,” id., at 356, and “to have
public officials perform their duties honestly,” id., at 358.
It described prior case law as holding that “a public official
owes a fiduciary duty to the public, and misuse of his office
for private gain is a fraud,” id., at 355.
But the pre-McNally Court of Appeals opinions were not
limited to fraud by public officials. Some courts had held
that those fiduciaries subject to the “honest services”
obligation included private individuals who merely par
ticipated in public decisions, see, e.g., United States v.
Gray, 790 F. 2d 1290, 1295–1296 (CA6 1986) (citing
United States v. Margiotta, 688 F. 2d 108, 122 (CA2
1982)), and even private employees who had no role in
public decisions, see, e.g., United States v. Lemire, 720
F. 2d 1327, 1335–1336 (CADC 1983); United States v. Von
Barta, 635 F. 2d 999, 1007 (CA2 1980). Moreover, “to say
that a man is a fiduciary only begins [the] analysis; it
gives direction to further inquiry. . . . What obligations
does he owe as a fiduciary?” SEC v. Chenery Corp., 318
U. S. 80, 85–86 (1943). None of the “honest services”
cases, neither those pertaining to public officials nor those
pertaining to private employees, defined the nature and
content of the fiduciary duty central to the “fraud” offense.
There was not even universal agreement concerning the
4 SKILLING v. UNITED STATES
Opinion of SCALIA, J.
source of the fiduciary obligation—whether it must be
positive state or federal law, see, e.g., United States v.
Rabbitt, 583 F. 2d 1014, 1026 (CA8 1978), or merely gen
eral principles, such as the “obligations of loyalty and
fidelity” that inhere in the “employment relationship,”
Lemire, supra, at 1336. The decision McNally reversed
had grounded the duty in general (not jurisdiction-specific)
trust law, see Gray, supra, at 1294, a corpus juris fes
tooned with various duties. See, e.g., Restatement (Sec
ond) of Trusts §§169–185 (1976). Another pre-McNally
case referred to the general law of agency, United States v.
Ballard, 663 F. 2d 534, 543, n. 22 (CA5 1981), modified on
other grounds by 680 F. 2d 352 (1982), which imposes
duties quite different from those of a trustee.1 See Re
statement (Second) of Agency §§377–398 (1957).
This indeterminacy does not disappear if one assumes
that the pre-McNally cases developed a federal, common
law fiduciary duty; the duty remained hopelessly unde
fined. Some courts described it in astoundingly broad
language. Blachly v. United States, 380 F. 2d 665 (CA5
1967), loftily declared that “[l]aw puts its imprimatur on
the accepted moral standards and condemns conduct
which fails to match the ‘reflection of moral uprightness,
of fundamental honesty, fair play and right dealing in the
general and business life of members of society.’ ” Id., at
671 (quoting Gregory v. United States, 253 F. 2d 104, 109
(CA5 1958)). Other courts unhelpfully added that any
scheme “contrary to public policy” was also condemned by
——————
1 The
Court is untroubled by these divisions because “these debates
were rare in bribe and kickback cases,” in which “[t]he existence of a
fiduciary relationship, under any definition of that term, was usually
beyond dispute,” ante, at 43, n. 41. This misses the point. The Courts
of Appeals may have consistently found unlawful the acceptance of a
bribe or kickback by one or another sort of fiduciary, but they have not
consistently described (as the statute does not) any test for who is a
fiduciary.
Cite as: 561 U. S. ____ (2010) 5
Opinion of SCALIA, J.
the statute, United States v. Bohonus, 628 F. 2d 1167,
1171 (CA9 1980). See also United States v. Mandel, 591
F. 2d 1347, 1361 (CA4 1979) (any scheme that is “contrary
to public policy and conflicts with accepted standards of
moral uprightness, fundamental honesty, fair play and
right dealing”). Even opinions that did not indulge in such
grandiloquence did not specify the duty at issue beyond
loyalty or honesty, see, e.g., Von Barta, supra, at 1005–
1006. Moreover, the demands of the duty were said to be
greater for public officials than for private employees, see,
e.g., Lemire, supra, at 1337, n. 13; Ballard, supra, at 541,
n. 17, but in what respects (or by how much) was never
made clear.
The indefiniteness of the fiduciary duty is not all. Many
courts held that some je-ne-sais-quoi beyond a mere
breach of fiduciary duty was needed to establish honest
services fraud. See, e.g., Von Barta, supra, at 1006 (col
lecting cases); United States v. George, 477 F. 2d 508, 512
(CA7 1973). There was, unsurprisingly, some dispute
about that, at least in the context of acts by persons owing
duties to the public. See United States v. Price, 788 F. 2d
234, 237 (CA4 1986). And even among those courts that
did require something additional where a public official
was involved, there was disagreement as to what the
addition should be. For example, in United States v. Bush,
522 F. 2d 641 (1975), the Seventh Circuit held that mate
rial misrepresentations and active concealment were
enough, id., at 647–648. But in Rabbitt, 583 F. 2d 1014,
the Eighth Circuit held that actual harm to the State was
needed, id., at 1026.
Similar disagreements occurred with respect to private
employees. Courts disputed whether the defendant must
use his fiduciary position for his own gain. Compare
Lemire, supra, at 1335 (yes), with United States v. Bron
ston, 658 F. 2d 920, 926 (CA2 1981) (no). One opinion
upheld a mail-fraud conviction on the ground that the
6 SKILLING v. UNITED STATES
Opinion of SCALIA, J.
defendant’s “failure to disclose his receipt of kickbacks and
consulting fees from [his employer’s] suppliers resulted in
a breach of his fiduciary duties depriving his employer of
his loyal and honest services.” United States v. Bryza, 522
F. 2d 414, 422 (CA7 1975). Another opinion, however,
demanded more than an intentional failure to disclose:
“There must be a failure to disclose something which in
the knowledge or contemplation of the employee poses an
independent business risk to the employer.” Lemire, 720
F. 2d, at 1337. Other courts required that the victim
suffer some loss, see, e.g., Ballard, supra, at 541–542—a
proposition that, of course, other courts rejected, see, e.g.,
United States v. Newman, 664 F. 2d 12, 20 (CA2 1981);
United States v. O’Malley, 535 F. 2d 589, 592 (CA10 1976).
The Court’s statement today that there was a deprivation
of honest services even if “the scheme occasioned a money
or property gain for the betrayed party,” ante, at 35, is
therefore true, except to the extent it is not.
In short, the first step in the Court’s analysis—holding
that “the intangible right of honest services” refers to “the
honest-services doctrine recognized in Court of Appeals’
decisions before McNally,” ante, at 39—is a step out of the
frying pan into the fire. The pre-McNally cases provide no
clear indication of what constitutes a denial of the right of
honest services. The possibilities range from any action
that is contrary to public policy or otherwise immoral, to
only the disloyalty of a public official or employee to his
principal, to only the secret use of a perpetrator’s position
of trust in order to harm whomever he is beholden to. The
duty probably did not have to be rooted in state law, but
maybe it did. It might have been more demanding in the
case of public officials, but perhaps not. At the time §1346
was enacted there was no settled criterion for choosing
among these options, for conclusively settling what was in
Cite as: 561 U. S. ____ (2010) 7
Opinion of SCALIA, J.
and what was out.2
II
The Court is aware of all this. It knows that adopting
by reference “the pre-McNally honest-services doctrine,”
ante, at 42, is adopting by reference nothing more precise
than the referring term itself (“the intangible right of
honest services”). Hence the deus ex machina: “[W]e pare
that body of precedent down to its core,” ante, at 39. Since
the honest-services doctrine “had its genesis” in bribery
prosecutions, and since several cases and counsel for
Skilling referred to bribery and kickback schemes as “core”
or “paradigm” or “typical” examples, or “[t]he most obvious
form,” of honest-services fraud, ante, at 43 (internal quota
tion marks omitted), and since two cases and counsel for
the Government say that they formed the “vast majority,”
or “most” or at least “[t]he bulk” of honest-services cases,
ante, at 42–44 (internal quotation marks omitted),
THEREFORE it must be the case that they are all
Congress meant by its reference to the honest-services
doctrine.
Even if that conclusion followed from its premises, it
would not suffice to eliminate the vagueness of the stat
ute. It would solve (perhaps) the indeterminacy of what
acts constitute a breach of the “honest services” obligation
under the pre-McNally law. But it would not solve the
most fundamental indeterminacy: the character of the
“fiduciary capacity” to which the bribery and kickback
——————
2 Courts since §1346’s enactment have fared no better, reproducing
some of the same disputes that predated McNally. See, e.g., Sorich v.
United States, 555 U. S. ___, ___–___ (2009) (SCALIA, J., dissenting from
denial of certiorari) (slip op., at 3–4) (collecting cases). We have previ
ously found important to our vagueness analysis “the conflicting results
which have arisen from the painstaking attempts of enlightened judges
in seeking to carry out [a] statute in cases brought before them.”
United States v. L. Cohen Grocery Co., 255 U. S. 81, 89 (1921). I am at
a loss to explain why the Court barely mentions those conflicts today.
8 SKILLING v. UNITED STATES
Opinion of SCALIA, J.
restriction applies. Does it apply only to public officials?
Or in addition to private individuals who contract with the
public? Or to everyone, including the corporate officer
here? The pre-McNally case law does not provide an
answer. Thus, even with the bribery and kickback limita
tion the statute does not answer the question “What is the
criterion of guilt?”
But that is perhaps beside the point, because it is obvi
ous that mere prohibition of bribery and kickbacks was
not the intent of the statute. To say that bribery and
kickbacks represented “the core” of the doctrine, or that
most cases applying the doctrine involved those offenses,
is not to say that they are the doctrine. All it proves is
that the multifarious versions of the doctrine overlap with
regard to those offenses. But the doctrine itself is much
more. Among all the pre-McNally smörgåsbord-offerings
of varieties of honest-services fraud, not one is limited to
bribery and kickbacks. That is a dish the Court has
cooked up all on its own.
Thus, the Court’s claim to “respec[t] the legislature,”
ante, at 44, n. 43 (emphasis deleted), is false. It is entirely
clear (as the Court and I agree) that Congress meant to
reinstate the body of pre-McNally honest-services law; and
entirely clear that that prohibited much more (though
precisely what more is uncertain) than bribery and kick
backs. Perhaps it is true that “Congress intended §1346 to
reach at least bribes and kickbacks,” ante, at 44. That
simply does not mean, as the Court now holds, that Ҥ1346
criminalizes only” bribery and kickbacks, ibid.
Arriving at that conclusion requires not interpretation
but invention. The Court replaces a vague criminal stan
dard that Congress adopted with a more narrow one (in
cluded within the vague one) that can pass constitutional
muster. I know of no precedent for such “paring down,”3
——————
3 The only alleged precedent the Court dares to describe is Civil Ser
Cite as: 561 U. S. ____ (2010) 9
Opinion of SCALIA, J.
and it seems to me clearly beyond judicial power. This is
not, as the Court claims, ante, at 41, simply a matter of
adopting a “limiting construction” in the face of potential
unconstitutionality. To do that, our cases have been care
ful to note, the narrowing construction must be “fairly
possible,” Boos v. Barry, 485 U. S. 312, 331 (1988), “rea
sonable,” Hooper v. California, 155 U. S. 648, 657 (1895),
or not “plainly contrary to the intent of Congress,” Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 575 (1988). As we
have seen (and the Court does not contest), no court before
McNally concluded that the “deprivation of honest ser
vices” meant only the acceptance of bribes or kickbacks. If
it were a “fairly possible” or “reasonable” construction, not
“contrary to the intent of Congress,” one would think that
some court would have adopted it. The Court does not
even point to a post-McNally case that reads §1346 to
cover only bribery and kickbacks, and I am aware of none.
The canon of constitutional avoidance, on which the
Court so heavily relies, see ante, at 41–42, states that
“when the constitutionality of a statute is assailed, if the
——————
vice Comm’n v. Letter Carriers, 413 U. S. 548 (1973). That case in
volved a provision of the Hatch Act incorporating prior adjudications of
the Civil Service Commission. We upheld the provision against a
vagueness challenge—not, however, by “paring down” the adjudications
to a more narrow rule that we invented, but by concluding that what
they held was not vague. See id., at 571–574. The string of cases the
Court lists, see ante, at 41, n. 40, (almost none of which addressed
claims of vagueness), have nothing to do with “paring down.” The one
that comes closest, United States v. Thirty-seven Photographs, 402 U. S.
363 (1971), specified a time limit within which proceedings authorized
by statute for the forfeiture of obscene imported materials had to be
commenced and completed. That is not much different from “reading
in” a reasonable-time requirement for obligations undertaken in con
tracts, and can hardly be described as a rewriting or “paring down” of
the statute. The Court relied on legislative history anticipating that
the proceedings would be prompt, id., at 370–371, and noted that
(unlike here) it was not “decid[ing] issues of policy,” id., at 372.
10 SKILLING v. UNITED STATES
Opinion of SCALIA, J.
statute be reasonably susceptible of two interpretations,
by one of which it would be unconstitutional and by the
other valid, it is our plain duty to adopt that construction
which will save the statute from constitutional infirmity.”
United States ex rel. Attorney General v. Delaware &
Hudson Co., 213 U. S. 366, 407 (1909); see also United
States v. Rumely, 345 U. S. 41, 45 (1953) (describing the
canon as decisive “in the choice of fair alternatives”). Here
there is no choice to be made between two “fair alterna
tives.” Until today, no one has thought (and there is no
basis for thinking) that the honest-services statute prohib
ited only bribery and kickbacks.
I certainly agree with the Court that we must, “if we
can,” uphold, rather than “condemn,” Congress’s enact
ments, ante, at 38. But I do not believe we have the
power, in order to uphold an enactment, to rewrite it.
Congress enacted the entirety of the pre-McNally honest
services law, the content of which is (to put it mildly)
unclear. In prior vagueness cases, we have resisted the
temptation to make all things right with the stroke of our
pen. See, e.g., Smith v. Goguen, 415 U. S. 566, 575 (1974).
I would show the same restraint today, and reverse Skill
ing’s conviction on the basis that §1346 provides no “ascer
tainable standard” for the conduct it condemns, L. Cohen,
255 U. S., at 89. Instead, the Court today adds to our
functions the prescription of criminal law.
III
A brief word about the appropriate remedy. As I noted
supra, at 2, Skilling has argued that §1346 cannot be
constitutionally applied to him because it affords no defi
nition of the right whose deprivation it prohibits. Though
this reasoning is categorical, it does not make Skilling’s
challenge a “facial” one, in the sense that it see
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