18 U.S.C. § 1346 — Honest Services Fraud

Honest services fraud is the theory prosecutors use when someone in a position of trust acted disloyally but no money obviously went missing.

It was once close to unlimited. A series of Supreme Court decisions has cut it down substantially, and the current boundaries are worth knowing precisely — because charges still get brought at the old edges.

What the statute says

18 U.S.C. § 1346 is a single sentence: "For the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

It is a definitional provision. It is never charged alone — it supplies a theory of fraud for a wire fraud or mail fraud count.

Skilling: bribery and kickbacks only

Congress enacted § 1346 in 1988 to revive honest services prosecutions after the Supreme Court's decision in McNally v. United States. Lower courts then read it very broadly, reaching undisclosed self-dealing and conflicts of interest, and the vagueness problem became acute.

In Skilling v. United States, 561 U.S. 358 (2010), the Court held that to survive a vagueness challenge § 1346 must be confined to its historical core: bribery and kickback schemes. It expressly declined to extend the statute to undisclosed self-dealing or conflict-of-interest cases.

That is the governing rule. If the government's theory is that a defendant had an undisclosed interest but no bribe or kickback is alleged, the theory is not viable after Skilling.

The elements

1. A scheme to defraud by depriving another of honest services, in the form of bribery or kickbacks;
2. A fiduciary or trust relationship, or a comparable duty owed to the victim;
3. Materiality;
4. Specific intent to defraud; and
5. Use of the mails or interstate wires in furtherance of the scheme.

The decisions after Skilling

Kelly v. United States, 590 U.S. 391 (2020) — the "Bridgegate" case. A scheme must aim at obtaining money or property; the exercise of regulatory power, even corruptly, is not enough.

Ciminelli v. United States, 598 U.S. 306 (2023) — rejected the Second Circuit's "right to control" theory, under which depriving a victim of information bearing on an economic decision was itself property fraud. Wire fraud protects traditional property interests only.

Percoco v. United States, 598 U.S. 319 (2023) — a private citizen may owe a duty of honest services in some circumstances, but the jury instruction given there was too vague. Being an informal adviser with influence over officials is not automatically a fiduciary duty.

Snyder v. United States, 603 U.S. 1 (2024) — construing the related federal bribery statute, 18 U.S.C. § 666, to reach bribes but not after-the-fact gratuities. Relevant wherever the government's proof is a reward rather than an agreed exchange.

Read together, these decisions require the government to identify a genuine quid pro quo and a traditional property or honest-services interest — not merely conduct that looks improper.

Penalty range

Because § 1346 operates through the fraud statutes, the penalty is theirs: up to 20 years per count, or 30 years where the scheme affects a financial institution. Sentencing is driven by the loss or benefit figure under U.S.S.G. § 2B1.1, with enhancements available for the involvement of a public official.

How it shows up in real cases

Public corruption prosecutions of officials who took payments for official action. Private-sector cases where an employee took kickbacks from a vendor. Procurement cases involving bid rigging with payments. In each, the essential question after Skilling is whether the evidence establishes a bribe or kickback — an agreed exchange — rather than merely a conflict, a favor, or a relationship.

Related statutes and pages

Wire fraud · 18 U.S.C. § 666 — theft/bribery involving federal programmes · 18 U.S.C. § 371 — conspiracy · RICO