Amicus Curiae Brief — Full Play Group, S.A., Petitioner v. United States, et al.

Nos. 25-390 & 25-396

In the Supreme Court of the United States

_________

F ULL P LAY G ROUP, S.A.,

Petitioner,

v.

U NITED S TATES OF A MERICA , ET AL.

Respondents.

_________

H ERNAN LOPEZ ,

v.

Petitioner,

U NITED S TATES OF A MERICA , ET AL.

Respondents.

_________

On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

_________

BRIEF OF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

_________

L UKE A. W AKE

Counsel of Record

W ILSON C. F REEMAN

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

lwake@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

QUESTIONS PRESENTED

1. Whether the honest-services statute criminalizes

foreign commercial bribery.

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

ii

TABLE OF CONTENTS

Table of Authorities ................................................. iii

Identity and Interest of Amicus Curiae ..................... 1

Introduction and Summary of Argument .............. 2

Argument .................................................................... 4

I.

Background of Honest Services Fraud ............ 4

II.

Skilling’s “Fix” For The Statute Was

Illegitimate Judicial Lawmaking .................... 6

III. Skilling’s “Fix” Approach Undermines Due

Process Further ................................................ 8

A. A fix focused on Congress’s “intent” can

never provide fair notice ............................... 9

B. Judicial fixes of vague statutes invite

arbitrary exercises of executive power ....... 12

IV. Overturning Skilling Will Fix Both A

Dangerous Example Of Untethered Federal

Power And An Anomaly In The Court’s

Vagueness Jurisprudence .............................. 14

Conclusion ................................................................ 16

iii

TABLE OF AUTHORITIES

Cases

Black v. United States,

561 U.S. 465 (2010) ............................................... 5

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) ............................................... 8

City of Chicago v. Morales,

527 U.S. 41 (1999) ............................................... 12

Connally v. Gen. Const. Co.,

269 U.S. 385 (1926) ............................................. 11

Conroy v. Aniskoff,

507 U.S. 511 (1993) ............................................... 8

Encino Motorcars, LLC v. Navarro,

584 U.S. 79 (2018) ................................................. 8

FCC v. Consumers’ Rsch.

145 S. Ct. 2482 (2025) ......................................... 13

Goldington v. Bassingburn,

Y.B. Trin. 3 Edw. II (1310) .................................. 10

Grayned v. City of Rockford,

408 U.S. 104 (1972) ........................... 2, 9-10, 12-13

Johnson v. United States,

576 U.S. 591 (2015) .................................... 9-10, 15

Kaweah Delta Health Care Dist. v. Becerra,

123 F.4th 939 (9th Cir. 2024) .............................. 13

Kolender v. Lawson,

461 U.S. 352 (1983) ......................................... 8, 12

Lorillard v. Pons,

434 U.S. 575 (1978) ............................................... 7

McBoyle v. United States,

283 U.S. 25 (1931) ............................................... 11

McDonnell v. United States,

579 U.S. 550 (2016) ......................................... 5, 13

iv

McNally v. United States,

483 U.S. 350 (1987) ........................................... 4, 6

Morissette v. United States,

342 U.S. 246 (1952) ............................................... 7

Neder v. United States,

527 U.S. 1 (1999) ................................................... 7

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ............................................. 12

Percoco v. United States,

598 U.S. 319 (2023) ............................. 2-3, 5, 13-14

Rodriguez v. United States,

480 U.S. 522 (1987) ............................................. 13

Sessions v. Dimaya,

584 U.S. 148 (2018) .................................... 9-10, 15

Skilling v. United States,

561 U.S. 358 (2010) ........................... 3-9, 11, 13-14

United States v. Davis,

588 U.S. 445 (2019) ......................... 6, 10-11, 15-16

United States v. Lopez,

143 F.4th 99 (2d Cir. 2025) ................................... 5

United States v. Stevens,

559 U.S. 460 (2010) ............................................... 8

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) ........................... 2, 13

Weyhrauch v. United States,

561 U.S. 476 (2010) .............................................. 5

Statutes

18 U.S.C. § 16(b) ................................................. 10, 15

18 U.S.C. § 1346 ................................. 4-5, 7, 11, 14, 16

v

Miscellaneous

Brief Amicus Curiae of Pacific Legal

Foundation and Cato Institute in

Support of Neither Party,

Skilling v. United States,

2009 WL 4919360 (Dec. 16, 2009)......................... 1

McCarthy, Andrew C., The Grave Dangers

of Lawfare, Nat’l Rev. Mag. (Sept.

2024), https://tinyurl.com/yepev7n7 ................... 15

Scalia, Antonin & Garner, Brian A.,

Reading Law (2012) ........................................... 7-8

Thiessen, Marc A., When the Rule of

Law Becomes Rule of Lawfare,

Wash. Post (Aug. 23, 2025),

https://tinyurl.com/553ds7jp ............................... 15

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Pacific Legal Foundation (PLF) is a nonprofit, nonpartisan public-interest law firm that has defended

individual liberty and limited government since

1973—including many appearances before this Court.

PLF ’s mission centers on the rule of law, which requires that Congress—not prosecutors or courts—

make the law, and that criminal prohibitions provide

clear, text-anchored notice so people can order their

conduct. Vague statutes that shift core policy choices

to enforcers threaten both due process and the separation of powers.

PLF has a particular interest in curbing overcriminalization that chills lawful enterprise and ordinary

civic life. 2 Entrepreneurs, employees, nonprofit officers, and small businesses must be able to read the

1 Pursuant to Rule 37.2, counsel for all parties received notice

of intent to file this brief at least 10 days prior to the due date.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2 Pacific Legal Foundation filed an amicus in support of neither

party in Skilling, arguing, among other things, that “the

language of the statute itself does not give fair warning to the lay

public” and the various narrowing constructions adopted by

Courts of Appeals at that time had “failed to lay out authoritative

guidelines for applying the statute.” Brief Amicus Curiae of

Pacific Legal Foundation and Cato Institute in Support of

Neither Party, Skilling v. United States, 2009 WL 4919360, at

*13, 15 (Dec. 16, 2009). Rather, the brief argued, the honest

services fraud statute “appears to be the prototypical vague

statute proscribing ‘ bad conduct.’ ” Id. at *15.

2

U.S. Code and know what conduct is forbidden. When

open-ended phrases like “the intangible right of honest services” are filled in by post hoc judicial pruning,

ordinary Americans bear the compliance costs and the

risk of arbitrary enforcement. This case presents an

opportunity to reaffirm that, in our constitutional order, Congress must enact determinate criminal laws

and that “a vague law is no law at all.”

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case asks a first-principles question: Who

makes criminal law? Article I vests all legislative

power in Congress, and when Congress legislates it

must decide the “important subjects,” leaving only

“details” to others. Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 42-43 (1825). That allocation is what underwrites the vagueness doctrine’s twin commands:

Congress must adequately define criminal prohibitions such that enacted statutes give “the person of ordinary intelligence a reasonable opportunity to know

what is prohibited” and such that they will not encourage “arbitrary and discriminatory enforcement.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

In the honest services law, Congress enacted an indeterminate criminal prohibition, hoping courts could

salvage it case-by-case. The statute is one sentence,

simply sweeping into federal fraud crimes all schemes

to deprive a person of “honest services.” But honest

services is not defined anywhere in the statute. And

it had no agreed-upon preexisting meaning when the

statute was passed. Almost 40 years has passed since

it became law, and still “no one knows what ‘ honestservices fraud’ encompasses.” Percoco v. United

3

States, 598 U.S. 319, 333 (2023) (Gorsuch, J., concurring).

Despite this facial indeterminacy, in Skilling v.

United States, 561 U.S. 358 (2010), the Court took the

unusual step of reimagining the honest services statute to save it from invalidity. Although, at the time,

Justice Scalia argued that the Court’s “paring down”

a statute to save it from vagueness concerns exceeded

the judicial role, 561 U.S. at 422-24 (Scalia, J., concurring), the Court disagreed, asserting that case law required them to do so. Id. at 403. The “narrowing construction” adopted by the Court however, had no

grounding in the statute’s text. Id. at 423 (Scalia, J.,

concurring).

Skilling ’s approach undermined both individual

liberty and separation of powers. First, no Courtdriven fix of a statute can provide necessary “fair notice” to the public as to what the law requires. Individuals can conform their conduct to the law only if

that law has a meaning which is discernable. Individuals can only be expected to discern a statute’s meaning by reference to statutory text and context. Second,

allowing prosecutors to continually push the boundaries of an undefined (and apparently evolving) term

allows Congress to avoid the responsibility for defining the elements of a crime, effectively delegating authority to the executive to determine the scope of the

statute.

Courts construe laws. But they cannot make law.

A law, particularly a criminal law, must be capable of

being understood by ordinary people, and Congress

cannot defer on the important questions. These principles direct the outcome in this case. Accordingly,

this petition presents an opportunity to do what the

4

Court should have done in Skilling: acknowledge that

repairing a statute is beyond the scope of the judicial

power and send the honest services law back to Congress.

A vague federal criminal statute poses a threat to

everyone. Not only does it offend fundamental notions

of fair play and justice to charge individuals with

crimes they could not possibly have known they were

committing, but vague statutes give arbitrary power

to prosecutors and judges. In today’s environment,

where trust in federal criminal authorities is under

constant attack, our system must be doubly vigilant

against arbitrary criminal power.

The Court should grant this petition.

ARGUMENT

I.

Background Of Honest Services Fraud

The history of the honest services statute and the

background of this case were addressed in the petition, so only a short recap is necessary. In 1987, the

Supreme Court concluded that courts and prosecutors, who had theorized an “intangible rights” branch

of mail fraud, had pushed the statute beyond its text;

the mail-fraud law “protects property rights,” not an

amorphous right to the honest services of officials.

McNally v. United States, 483 U.S. 350, 356-60 (1987).

Congress responded, in 1988, by adding 18 U.S.C.

§ 1346, which declares that a “scheme or artifice to defraud” includes deprivation of “the intangible right of

honest services,” but it did not define that phrase. 3

3 Indeed, the phrase “honest services” does not appear in the

majority opinion in McNally.

5

In 2010, in Skilling, the Court confronted a vagueness challenge and salvaged § 1346 only by limiting it

to “the bribe-and-kickback core” of pre-McNally cases.

Skilling, 561 U.S. at 404-11; see also Black v. United

States, 561 U.S. 465 (2010); Weyhrauch v. United

States, 561 U.S. 476 (2010) (per curiam). And since

then, the Court has repeatedly trimmed expansive applications, emphasizing the need for clear, text-anchored limits—most recently rejecting a standardless

“clout” theory that would impose honest-services duties on private citizens. Percoco, 598 U.S. at 328-30.

See also McDonnell v. United States, 579 U.S. 550,

567-75 (2016) (rejecting expansion of liability under

honest service statute through expansive understanding of bribery statutes).

This case involves a further expansion of honestservices liability. The Second Circuit held that § 1346

can reach foreign, private-sector commercial bribery

by treating South American soccer officials as employees who owed fiduciary duties to their federations—

and by allowing those duties to be defined by nonpublic, privately drafted codes of conduct. The court below asserted that if conduct fell within the “core” of a

bribery and kickback scheme, involving the violation

of a genuine and established fiduciary duty, it did not

matter that it represented an expansion of previously

established liability. United States v. Lopez, 143 F.4th

99, 111 (2d Cir. 2025). On that premise, routine sponsorship and media-rights dealing becomes a federal

felony if prosecutors can characterize benefits as

“bribes” that induce a breach of a policy-based duty.

6

II. Skilling’s “Fix” For The Statute Was

Illegitimate Judicial Lawmaking

The honest services statute has always been vague.

By using a term (“the intangible right of honest services”) with no discernable or accepted meaning and

providing no way to understand or limit the term,

Congress failed to make law. See United States v. Davis, 588 U.S. 445, 447-48 (2019) (“A vague law is no

law at all.”). The Court’s decision to graft a “bribe or

kickback” requirement into the statute was not authorized by the text.

In Skilling, six Justices acknowledged that the

vagueness challenge to the statute had “force.” 561

U.S. at 405. As the majority opinion stated, “honestservices decisions preceding McNally were not models

of clarity or consistency.” Ibid. Despite this, the Court

attempted to preserve the statute by paring it back to

only “bribes” and “kickbacks,” citing its obligation that

“every reasonable construction must be resorted to, in

order to save a statute from unconstitutionality.” Id.

at 406 (citation omitted). There is no doubt that the

Court was at least somewhat correct in concluding

that Congress “intended” the statute to preserve

something of the pre-McNally caselaw. Id. at 404.

But the Court failed to consider whether Congress’s

unexpressed intent, even if discernable 22 years after

the fact, can ever be a useful guidepost in interpreting

a statute for purposes of a vagueness challenge.

As Justice Scalia recognized in his concurrence at

the time, even if consistent with some of Congress’s

intent in 1988, “paring down” the statute to bribes and

kickbacks simply is not a “reasonable” construction of

the phrase “honest services.” Id. at 422-23 (Scalia, J.,

concurring). Enacted words may carry an ordinary

7

meaning or a settled term-of-art meaning at the time

of enactment; if they do, courts apply that meaning,

and if they do not, courts do not invent one. See, e.g.,

Antonin Scalia & Brian A. Garner, Reading Law 69

(2012) (“Words are to be understood in their ordinary,

everyday meanings—unless the context indicates they

bear a technical sense.”); id. at 78 (“Words must be

given the meaning they had when the text was

adopted.”); see also Neder v. United States, 527 U.S. 1,

22-25 (1999) (treating “fraud” as a term of art that includes materiality); Morissette v. United States, 342

U.S. 246, 263 (1952) (presuming mens rea for traditional crimes). And when Congress borrows language

with a settled judicial construction, courts presume it

adopts that construction; the prior-construction canon

has no purchase where meaning was unsettled. Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Here,

however, there was not an ordinary, everyday meaning of “honest services”—or even an understanding of

that term limiting it to bribes and kickbacks.

What Skilling actually did was to consult a contested pre-McNally mosaic to divine what Congress

“intended.” The Court stated expressly that it looked

to the “genesis” of honest-services cases and announced that Congress “intended § 1346 to reach at

least bribes and kickbacks,” before holding that the

statute “criminalizes only the bribe-and-kickback

core.” 561 U.S. at 404, 408-09. That move did not

emerge from the words “intangible right of honest services”; it emerged from a policy- and history-based

judgment about what Congress must have meant. After divining Congress’s intent, the Court employed the

“bribes and kickbacks” limitation because it is practical and somewhat concrete—not because of anything

in the text of the law.

8

Textualism does not license that kind of rescue. A

core principle of modern statutory interpretation is

that “[t]he words of a governing text are of paramount

concern, and what they convey, in their context, is

what the text means.” Scalia & Garner, supra, at 56;

Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (“We are

governed by laws, not by the intentions of legislators.”) (Scalia, J., concurring). Or as the Court put it

more recently, “Only the written word is the law, and

all persons are entitled to its benefit.” Bostock v. Clayton Cnty., 590 U.S. 644, 653 (2020). That is why this

Court has emphasized that without a contrary textual

indication, statutes can only be given a fair reading.

Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 89

(2018). And since Skilling, the Court has clearly

stated it is without power to “rewrite a law to conform

it to constitutional requirements.” United States v.

Stevens, 559 U.S. 460, 481 (2010) (citation modified).

These principles run completely contrary to Skilling’s

approach with the honest services statute.

The inquiry, therefore, begins and ends with the

words Congress passed through bicameralism and

presentment—not with a judicial reconstruction of unexpressed aims.

III. Skilling’s “Fix” Approach Actually Undermines Due Process Further

As the Court explained in Skilling, “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.” 561 U.S. at 402-03 (citation omitted). See

also Kolender v. Lawson, 461 U.S. 352, 357 (1983). In

fact, by prioritizing Congress’s unexpressed intent

9

over the plain text of the statute, the Court inadvertently authorized a form of statutory interpretation in

vagueness cases which deepens the very problems the

vagueness doctrine is supposed to protect against.

First, Skilling’s rewrite approach undercuts fair

notice: ordinary people read statutes, not case mosaics. Reconstructing a supposed “core” from decades of

lower-court disagreement does not tell a “person of ordinary intelligence” what conduct is forbidden ex ante.

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Second, it aggravates arbitrary-enforcement risks.

When the operative words—“intangible right of honest services”—carry no determinate meaning, prosecutors necessarily pick their theories first and courts

prune later, the very “arbitrary and discriminatory

enforcement” the doctrine forbids. Ibid. See also

Johnson v. United States, 576 U.S. 591, 595-602

(2015); Sessions v. Dimaya, 584 U.S. 148, 162-63

(2018). As such, the Honest Fraud Services Act leaves

it to the Executive Branch and the Judicial Branch to

decide, in substance, what shall be deemed criminal

conduct.

These concerns should give rise to a simple and

clean rule: When courts evaluate a statute for concerns about vagueness, the reference point must be

the text and ordinary canons of statutory construction. Only by limiting courts to these tools can the interests of due process be protected.

A. A fix focused on Congress’s “intent” can

never provide fair notice

The first purpose of the void-for-vagueness doctrine

is thus to guarantee “that ordinary people have ‘fair

notice’ of the conduct a statute proscribes.” Dimaya,

584 U.S. at 155-56 (2018). As the Court has explained,

10

because people are free to “steer between lawful and

unlawful conduct,” laws must give “the person of ordinary intelligence a reasonable opportunity to know

what is prohibited” so that he may act accordingly;

otherwise, “[v]ague laws may trap the innocent by not

providing fair warning.” Grayned, 408 U.S. at 108-09.

This understanding reflects the founding-era principle that criminal rules must be prospective, public,

and knowable. See Dimaya, 584 U.S. at 176-77 (2018)

(Gorsuch, J., concurring in part & concurring in judgment) (tracing fair-notice requirements to Blackstone

and other common law sources and an insistence on

written, settled law). In the common law, as Justice

Gorsuch explained, criminal indictments and criminal

laws had to be clear enough so that “no one [could] be

taken by surprise” by having to “answer in court for

what [one] has not been warned to answer.” Id. at 178

(Gorsuch, J., concurring in part & concurring in judgment) (citing Goldington v. Bassingburn, Y.B. Trin. 3

Edw. II, f. 27b, 196 (1310)).

In the modern era, the Court has held several

vague statutes invalid where the judicial gloss on

those statutes made them hopelessly indeterminate to

ordinary people. See, e.g., Johnson, 576 U.S. at 597606 (striking the Armed Career Criminal Act’s residual clause as void for vagueness because the “ordinary-case” method, coupled with the “serious potential risk” standard, produced indeterminacy, observing that “the residual clause leaves grave uncertainty

about how to estimate the risk posed by a crime.”); Dimaya, 584 U.S. at 154-69 (2018) (plurality opinion)

(invalidating 18 U.S.C. § 16(b), as incorporated into

the INA, for the same reasons identified in Johnson);

Davis, 588 U.S. at 451-58 (holding 18 U.S.C.

§ 924(c)(3)(B)’s residual clause unconstitutionally

11

vague where the categorical “ordinary case” inquiry

left courts (and defendants) to guess about both conduct and risk).

Following this standard, Skilling’s approach of

looking to Congress’s intent and the pre-McNally

caselaw for the meaning of § 1346 cannot be supported. Ordinary people cannot be expected to reconstruct congressional purpose by canvassing court decisions or the Congressional record. Fair warning—

and indeed, “ordinary notions of fair play”—demand

an act drafted with at least such specificity that “men

of common intelligence [need not] guess at its meaning and differ as to its application.” Connally v. Gen.

Const. Co., 269 U.S. 385, 391 (1926); see also McBoyle

v. United States, 283 U.S. 25, 27 (1931) (“Although it

is not likely that a criminal will carefully consider the

text of the law before he murders or steals, it is reasonable that a fair warning should be given to the

world in language that the common world will understand.”). A system that requires citizens (and line

prosecutors) to divine liability by reconstructing legislative aims and contested historical practice, rather

than by reading the statute’s text, is precisely the one

the fair-notice component of vagueness forbids.

The facts of this case illustrate how the Court’s approach in Skilling undermined fair notice. How could

the Defendants here have been on notice that their

conduct would violate the honest services statute?

The Second Circuit must have assumed that defendants of “ordinary intelligence” who read the honest

services statute would be aware of the gloss put on

that statute by both the Supreme Court and prosecutors, including that it can apply both extraterritorially

and that the “honest services” being denied could in-

12

clude any breach of fiduciary duty, including employer-employee rules (in spite of the fact that neither

of these issues had ever been addressed by the Supreme Court or even a pre-McNally case). The honest

services statute applies to everyone, at all levels of sophistication. Its meaning must be at least be discernable from the text of the statute.

B. Judicial fixes of vague statutes invite

arbitrary exercises of executive power

The second purpose of the vagueness doctrine is to

prevent the prospect of arbitrary and discriminatory

enforcement that comes with statutes that leave it to

prosecutors or judges to define criminal conduct. “A

vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on

an ad hoc and subjective basis,” lacking “explicit

standards” to govern enforcement. Grayned, 408 U.S.

at 108-09. For that reason, statutes must contain

“minimal guidelines to govern law enforcement.”

Kolender, 461 U.S. at 358, 362 (invalidating a statute

that “encourages arbitrary enforcement” by failing to

specify what identification suffices); see also Papachristou v. City of Jacksonville, 405 U.S. 156, 168

(1972) (vagrancy law vested “unfettered discretion” in

police); City of Chicago v. Morales, 527 U.S. 41, 56-60

(1999) (plurality) (anti-gang loitering ordinance void

where it lacked “minimal guidelines” and invited arbitrary arrests).

The phrase “intangible right of honest services”

supplies no standards about who owes “honest services,” what fiduciary duty triggers criminal exposure,

or which exchanges constitute the kind of bribe or

kickback that transforms workplace or political conduct into a felony. These are not minor issues, but

13

precisely the “important subjects” that Congress must

address in all its lawmaking. Wayman, 23 U.S. at 1,

43. See also FCC v. Consumers’ Rsch. 145 S. Ct. 2482,

2497, 2501 (2025) (Congress must establish “general

policy” and impose “boundaries” on what the government can do with enacted law). Neither prosecutors

nor the judiciary is equipped to weigh “competing

[public] values” in deciding what shall or shall not be

criminalized. Rodriguez v. United States, 480 U.S.

522, 525-26 (1987). However, absent that direction

from Congress, prosecutors are quite happy to have

the power to pick theories first and challenge courts to

prune later—precisely the “ad hoc and subjective” pattern Grayned condemns. 408 U.S. at 109. While the

Court’s choice in Skilling to limit these problems to

the context of “bribes and kickbacks” restricts the

statute’s scope, it otherwise removes the statute from

what should be its anchor—the text. Now, as the Second Circuit’s decision makes clear, even history is not

a meaningful limitation. Instead, the statute has become an evolving ban on whatever conduct prosecutors think is “bad.” Cf. Kaweah Delta Health Care

Dist. v. Becerra, 123 F.4th 939, 952 (9th Cir. 2024) (invoking separation of powers in rejecting a statutory

interpretation that would enable a federal officer to

make decisions affecting the rights or obligations of

others based on nothing more than his sense of

“what[] he or she thinks is right”).

Post-Skilling experience confirms the risk: the

Court has had repeatedly to pare back expansive,

standardless applications. See McDonnell, 579 U.S. at

567-75 (rejecting open-ended “official act” theory in

corruption prosecutions); Percoco, 598 U.S. at 328-31

(rejecting “too vague” instructions that imposed hon-

14

est-services duties on a private citizen based on political “clout” untethered to law). This case may very

well be the next chapter in this story. But this kind of

serial correction of charging discretion is exactly what

the Court has tried to prevent with its vagueness jurisprudence.

The constitutional cure must be legislated clarity.

It is Congress’s role to make law, not the courts’. And

this case shows why. Without text-anchored standards, § 1346 will never provide prosecutors with clear

rules to follow.

IV. Overturning Skilling Will Fix Both A

Dangerous Example Of Untethered Federal

Power And An Anomaly In The Court’s

Vagueness Jurisprudence

Section 1346 is a workhorse of federal white-collar

enforcement; it reaches not only public corruption but

also private employment relationships and commercial dealings. As this case shows, the decision below

would permit prosecutors to premise federal felony liability on breaches of amorphous “fiduciary duties”

defined by private codes of conduct—even foreign

ones—so long as a benefit can be characterized as a

“bribe.” That regime burdens ordinary Americans—

employees, managers, small-business owners, nonprofit officers—who cannot plausibly anticipate, from

§ 1346’s text, which industry policies or internal manuals might be transformed into criminal law.

The practical costs are considerable. When criminal exposure turns on variable, nonpublic, and shifting private standards, lawful commerce and civic participation are chilled. Companies may over-engineer

compliance to guard against unknowable federal the-

15

ories; counterparties might hesitate to extend ordinary hospitality or enter routine sponsorships; private

and charitable boards will struggle to recruit. And the

threat of untethered federal prosecution seems especially important in an era where people are becoming

increasingly worried about government “lawfare,” and

the threat of arbitrary federal power is foremost in

many minds. 4

Equally important, left untouched, Skilling’s methodology continues to stand out as out of step. There,

the Court moved metaphorical mountains to save the

statute, combining history with the law’s unexpressed

goals to salvage a halfway concrete core from the mess

Congress provided. But this is not reading text “in

context”; it is effectuating unexpressed intent. Yet the

Court’s modern vagueness decisions teach a different

lesson: when a penal statute’s indeterminacy leaves

courts to “guess” at its reach, the remedy is not atextual patchwork but invalidation. Johnson, 576 U.S. at

595-602 (residual clause void where “ordinary case”

method produced hopeless indeterminacy); Dimaya,

584 U.S. at 154-69 (same for § 16(b)); Davis, 588 U.S.

at 447 (“In our constitutional order, a vague law is no

law at all.”).

This case offers a clean opportunity to restore that

through-line. The Court can say plainly that fair notice must come from Congress’s enacted words—given

their ordinary or settled legal meaning, alongside or-

See, e.g., Andrew C. McCarthy, The Grave Dangers of

Lawfare, Nat’l Rev. Mag. (Sept. 2024), https://tinyurl.com/

yepev7n7; Marc A. Thiessen, When the Rule of Law Becomes Rule

of Lawfare, Wash. Post (Aug. 23, 2025), https://tinyurl.com/

553ds7jp.

4

16

dinary canons of statutory construction—not from judicial reconstructions of purpose. Using these canons

of construction, § 1346’s operative phrase fails to provide enough content to make a viable criminal statute.

Indeed, if Congress has failed to adequately define

what it is prohibiting, it has failed to make law at all.

Striking down § 1346 would not hamstring anticorruption efforts. Congress has enacted targeted

bribery statutes, and it can write a clear honest-services law if it chooses. What it may not do is pass an

indeterminate prohibition and rely on prosecutors and

courts to supply the content later. The Constitution

entrusts the making of criminal law to Congress.

Where Congress has failed to speak with the clarity

due process requires, the proper course is to “treat the

law as a nullity and invite Congress to try again.” Davis, 588 U.S. at 448.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

L UKE A. W AKE

Counsel of Record

W ILSON C. F REEMAN

Pacific Legal Foundation

555 Capitol Mall,

Suite 1290

Sacramento, CA 95814

(916) 419-7111

lwake@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

N OVEMBER 2025