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• Bribery in the private sector

SKILLING v. UNITED STATES ( No. 08-1394 ) 2010

Fact Summary

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 manipulating its publicly reported financial results and making false and misleading statements. Count 1 of the indictment charged Skilling with, inter alia, conspiracy to commit “honest-services” wire fraud, 18 U. S. C. §§371, 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 insider trading. In May 2006 Skilling was found guilty on 19 counts of conspiracy, fraud, false statements and insider trading. He was found not guilty on nine counts of insider trading. He was sentenced to 292 months in prison and ordered to pay $45 million in fines and restitution. In separate proceedings he appealed his sentence.
Skilling raised two main arguments on appeal to the Supreme Court here. First, he contended that pretrial publicity and community prejudice prevented him from obtaining a fair trial. Second, he alleged he was improperly convicted him of conspiracy to commit honest-services wire fraud.

Commentary and Significant Features

Enron was one of several prominent corporate frauds to occur in the early 2000s (WorldCom, Lehman Bros. and Washington Mutual were others) that was based on sophisticated manipulations of the U.S. accounting regime. Public companies engineered misleading financial statements given the gaps in accounting rules with a lot of help from conspiratorial corporation executives. Enron losses were as a result of the creation of Special Purpose Entities (SPEs) and a mark-to-market accounting device –the brain child of several high level executives at Enron whereby the value of a security based on its current market value, instead of its book value. Enron hide debt that would otherwise lower the investment grade and banks to recall money. This was not reported on Enron’s financial report. The shareholders were misled that debt was not increasing and the revenue was even increasing. Judgments in the District Court in particular noted the harm caused to the ordinary people by the massive fraud and conspiracy which resulted in Enron’s collapse, 5,000 jobs lost, $2 billion in employee pensions lost, and which rendered $50 billion in Enron stock completely worthless -to say nothing of the collapse of implicated accounting firm Arthur Andersen. Indeed such was level of negative publicity and depth of feeling from ordinary people who were victims of the fraud that a considerable amount of court time had to be devoted to any issues of juror bias (as this case also makes clear).

While it recognised that civil enforcement alone cannot adequately protect the public against corporate fraud criminal enforcement has had mixed results as the Enron case shows. This case illustrates the problem of defining and detecting the difference between creative regulatory and legal compliance and fraud for which executives can be criminally liable.  It has been claimed that those accused will often argue they did not know their actions were illegal and that the standard defense in a fraud case is not that the fraud didn’t happen; it’s that they know they were breaking the law—or that talking up the company’s performance for a period was fraud. (Samuel Buell, 2011 (who assisted in the prosecution of Enron)).  While conspiracy liability has been hailed as the ‘darling of the modern prosecutor’s nursery’ (United States v. Reynolds, 919 F.2d 435, 439 (7th Cir. 1990)) difficulties with one of the three objects of the conspiracy (honest services wire fraud; money-or-property wire fraud; and securities fraud) threatened the other objects of the conspiracy. In this case the honest services theory was significantly narrowed and the case remanded back to determine any further implications of this. Justice Scalia unlike Justice Ginburg concluded that that § 1346’s vagueness cannot be remedied. As has been analysed first, Justice Scalia disputes the Court’s finding that bribery and kickback schemes are the essence of the honest-services fraud doctrine as reflected by the pre-McNally case law. To the contrary, in reviewing that body of law, Justice Scalia found there to be “no clear indication of what constitutes a denial of honest services.” Second, according to Justice Scalia, even if § 1346 is limited to bribery and kickbacks, there remains the “fundamental indeterminacy” of who falls within the statute’s ambit - public officials, private individuals who contract with the public, or everyone. To this question, Justice Scalia contends, the pre-McNally case law does not provide an answer. (Justice Ginsburg’s majority opinion indicates that the statute catches private sector fraud.). Third, in Justice Scalia’s view, the Court does not have the authority to limit the statute to only bribes and kickbacks. “I know of no precedent for such ‘paring down,’ and it seems to me clearly beyond judicial power.” According to Justice Scalia, “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. I would show the same restraint today, and reverse Skilling’s conviction on the basis that § 1346 provides ‘no ascertainable standard’ for the conduct it condemns.”  Justice Scalia further stated “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.” (, 2010)


It was also asked at this time when might the corporation itself be liable? Accounting firm to Enron, Arthur Andersen who were one of the ‘top 5’ at the time was successfully held liable-but for the ‘lesser’ charge of destroying evidence of the cover up at Enron.

Further complicating this case was the issue of the employee retirement plans which the District Court had wrongly deemed a financial institution –thereby incorrectly adding many months to Skilling’s sentence. The case on his sentencing was heard in 2009 and the lower court ordered to resentence Skilling –that resentencing was stayed pending the outcomes of other appeals (including the appeal now under discussion). Eventually as part of an agreement in 2013, the government reduced Skilling’s sentence to 14 years (instead of 24 years) in exchange for his agreeing to abandon further appeals of his conviction. Doing so would allow the government to disperse $40 million in Skilling’s assets that had been frozen since his arrest to those harmed by Enron’s collapse. Skilling was re-sentenced to 168 months in prison and three years of supervised release, and ordered to pay the$40 million in restitution to the Enron Fair Fund for victims of the fraud, an amount the government collected from the seizure and liquidation of his assets.

Following the Enron fraud scandal, in 2002 the US Congress passed the Sarbanes-Oxley law that created new standards of top-management responsibility for honest financial accounting and that increased penalties for defrauding investors in shares of corporate stock. Among other provisions, the act calls for increased oversight duties for corporate fraud, requires corporate CEOs and CFOs to certify corporate financial statements personally, and adjusts federal sentencing guidelines to implement longer prison sentences for high-level corporate executives convicted of corporate financial fraud. (Gerber & Jensen 2007, p.88).

The law also recognised the unsuccessful efforts of Enron insider Sherron Watkins to highlight and stop the fraud and new whistleblowing provisions were provided for in the 2010 Dodd-Frank Reform Act.

As has been noted former Enron executives were successfully convicted even if the saga took several years to be legally determined-such that ‘Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions’, (Charles Doyle, 2016.)

Sentence Date:

Cross-Cutting Issues


... for

• completed offence

... as involves

• principal offender(s)
• legal persons


Involved Countries

United States of America

Investigation Procedure

Involved Agencies

• Federal Bureau of Investigation (“FBI”)

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Supreme Court
Type of Proceeding:
Accused were tried:
separately (parallel trials)
Proceeding #1:
  • Stage:
  • Official Case Reference:
    SKILLING v. UNITED STATES, (2010) No. 08-1394
  • Court

    • Criminal


     The Supreme Court considered Skilling’s appeal which was based on 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 improperly convicted him of conspiracy to commit honest-services wire fraud. 

    (a)               In relation to Skilling’s arguments of juror bias, the Supreme Court re-counted Skilling’s early submissions in this regard. In November 2004, Skilling moved for a change of venue, contending that hostility toward him in Houston, coupled with extensive pretrial publicity, had poisoned potential jurors. He submitted affidavits from experts he engaged portraying community attitudes in Houston in comparison to other potential venues. The lower court denied the motion, concluding that pretrial publicity did not warrant a presumption 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. Moreover, the lower court asserted, effective voir dire would detect juror bias. In the months before the trial, the court asked the parties for questions it might use to screen prospective jurors. The Supreme Court noted Skilling’s more probing and specific questions were used and that 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 individuals, and the parties, with the court’s approval, further winnowed the pool by excusing another 119 for cause, hardship, or physical disability. The parties agreed to exclude, in particular, every prospective juror who said that a pre-existing opinion about Enron or the defendants would prevent her from being impartial. In December 2005, three weeks before the trial date, one of Skilling’s co-defendants, Richard Causey, pleaded guilty. Skilling renewed his change-of-venue motion, arguing that the juror questionnaires 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 denied Skilling’s request for attorney-led voir dire on the ground that potential jurors were more forthcoming with judges than with lawyers.  Here the Supreme Court noted 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. The Supreme Court noted, in relation to voir dire, after questioning the venire as a group, the court examined prospective jurors to identify red flag and possible bias. The court then permitted 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. Skilling contended that pretrial publicity and community prejudice prevented him from obtaining a fair trial. The Supreme Court noted while 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 the presumption is rebuttable. The Supreme Court noted an appeals court examined the voir dire, and found it “proper and thorough.” The Supreme Court reviewed there was no error in denying Skilling’s requests for a venue transfer. While it acknowledged a basis for such an argument was made out in Rideau v. Louisiana373 U. S. 723, the Supreme Court held prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance. A presumption of prejudice attends only the extreme case.  It noted Rideau was a small-town setting in  but Houston is the Nation’s fourth most populous city with a large, diverse pool of residents. Second, the media may not be kind  it noted the decibel level of media attention diminished somewhat in the years following Enron’s collapse. Finally, and of prime significance, Skilling’s jury acquitted him of nine insider-trading counts. The case, the Supreme Court stated, yielded no overwhelming victory for the Government. Houston’s size and diversity diluted the media’s impact. Nor did Enron’s sheer number of victims trigger a presumption.  Finally on this issue the Supreme Court noted the extensive screening questionnaire and follow-up voir dire yielded jurors whose links to Enron were either non-existent or attenuated. In addition it noted when the other defendant pleaded guilty the lower court took appropriate steps to mitigate a risk of juror prejudice.

    (b)               As regards actual prejudice the Supreme Court found none contaminated Skilling’s jury. It  rejected Skilling’s assertions that voir dire defuse juror prejudice. It allowed deference to the trail judge in because the judge “sits in the locale where the publicity is said to have had its effect”. It rejected because the voir dire lasted only five hours that it failed adequately to probe the jurors. The questionnaire was drafted in large part by Skilling. And the secured jurors were largely uninterested in publicity about Enron. Noting a trial court’s findings of juror impartiality may be overturned only for manifest error (citing Mu’Min, 500 U. S., at 428). The Supreme Court concluded there was no actual prejudice contaminating Skilling’s jury and it rejected Skilling’s assertions that voir dire did not adequately detect and defuse juror prejudice and that several seated jurors were biased.

    In relation to the second line of appeal the court considered the legislative history of the 18 U.S.C. § 1346. The Government indicted Mr. Skilling for, among other things, conspiring to deprive Enron and its shareholders of the intangible right of his honest services. 18 U.S.C. § 1346, specifically expands the mail-fraud and wire-fraud statutes to reach "a scheme or artifice to deprive another of the intangible right of honest services."

    The Supreme Court traced the development of the doctrine in a series of decisions beginning in the 1940s, interpreting the prohibition to mean “any scheme or artifice to defraud” to include deprivations not only of money or property, but also of intangible rights. Unlike traditional fraud, in which the victim’s loss of money or property supplied the defendant’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 deprivation of money or property; instead, a third party, who had not been deceived, provided the enrichment- and the actionable harm lay in the denial of that party’s right to the offender’s “honest services.” Most often these cases involved bribery of public officials, but over time, the courts increasingly applied to a private employee who breached his allegiance to his employer, often by accepting bribes or kickbacks. The Supreme Court then noted that in 1987, this Court halted the development of the intangible-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.” Congress indeed 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.”

    The Supreme Court next considered that if Section 1346 as written was unconstitutionally vague as claimed. It recalled that 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” (citing Kolender v. Lawson, 461 U. S. 352, 357.) It stated the void-for-vagueness doctrine embraces these requirements. Skilling contends §1346 meets neither of these two due-process essentials.

    The Court then reasoned that it must if possible, construe, not condemn, Congress’ enactments, (citing Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 571, in support). It noted that Courts of Appeals while alive to the potential breadth of the provision it declined to throw out the statute as irremediably vague. The Supreme Court then stated it agrees that §1346 should be construed rather than invalidated and returned to pre-McNally cases to ascertain the meaning of the phrase “the intangible right of honest services.” It concluded Congress intended §1346 to refer to and incorporate the honest-services doctrine recognized in Courts of Appeals’ decisions before McNally ‘derailed the intangible-rights theory of fraud’ –indeed it noted Congress, enacted §1346 precisely to remedy McNally and the statute deliberately employed that decision’s terminology. The Court next pared the pre-McNally body of precedent down to its core: i.e. cases involving fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived. In parsing the various pre-McNally decisions, the Court acknowledged that Skilling’s vagueness challenge has force-it agreed honest-services decisions were not models of clarity or consistency. But it noted it has long been the Court’s practice, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction (here it referred to Hooper v. California, 155 U. S. 648, 657). As regards Skilling contention that it is impossible to identify a salvageable honest-services core (because the pre-McNally cases are inconsistent and hopelessly unclear), the Supreme Court acknowledged the disagreement among the Courts of Appeals –but stated it was still clear the vast majority of cases involved bribery or kickback schemes. Indeed, McNally itself presented a paradigmatic kickback fact pattern. In view of this history, there is no doubt that Congress intended §1346 to reach at least bribes and kickbacks. The Supreme Court on this point that §1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.

    The Supreme Court then responded to Government arguments that §1346 also proscribes the undisclosed self-dealing by a public official or private employee.  The Court rejected this as an offence within the legislation. It noted firstly McNally itself did not center on nondisclosure of a conflicting financial interest (rather it involved a classic kickback scheme). The Court recalled again that Congress’ undoubted aim was to reverse McNally. In addition the Court rejected that pre-McNally conflict-of-interest cases constitute core applications of the honest-services doctrine. It reasoned where Courts of Appeals upheld honest-services convictions for some conflict-of-interest schemes, there was no consensus if the schemes qualified. Given the relative infrequency of those prosecutions and the intercircuit inconsistencies they produced, the Court concluded that a reasonable limiting construction of §1346 must exclude this amorphous category of cases including on the basis of principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity” and the absence of Congress’ clear instruction otherwise.

    On the basis that its interpretation encompassed 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.  The Court stated it has always been clear that bribes and kickbacks constitute honest-services fraud, Williams v. United States, 341 U. S. 97, 101, and it reasoned the statute’s mens rea requirement further blunts any notice concern (referring to Screws v. United States, 325 U. S. 91, 101–104). As to arbitrary prosecutions, the Court perceived 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.

    Skilling did not violate §1346, as the Court interprets the statute. The Government charged Skilling with conspiring to defraud 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 (here the Court referred to See Yates v. United States, 354 U. S. 298 in support). It continued that its conclusion does not necessarily require reversal of the conspiracy conviction, for errors of the Yates variety are subject to harmless-error analysis.

    The Court left 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 (i.e. the court of appeals' judgment was vacated insofar as it upheld defendant's conspiracy conviction, and the matter was remanded for further proceedings. The court of appeals' ruling that defendant received a fair trial was affirmed.) The Supreme Court judges were divided as follows: 6-3 decision on the fair-trial issue; 9-0 decision on honest services fraud. 2 concurrences; 1 dissent in part.




    Term of Imprisonment:
    14 years

    In 2004 the former finance chief of Enron Andrew Fastow, pleaded guilty to criminal fraud charges and agreed to cooperate with prosecutors in return for a 10-year prison sentence.

    In 2006 former chief accountant for Enron Corp. Richard A. Causey, received a 5.5 year prison sentence and pleaded guilty guilty to a single count of securities fraud

    In July 2006 Enron company founder Kenneth L. Lay died of heart disease less than two months after a jury convicted him and Skilling of conspiracy to commit securities and wire fraud. His death vacated his conviction on fraud and conspiracy charges. He died before sentencing was pronounced.

    Defendants / Respondents in the first instance

    Number of other accused:


    United States Supreme Court