McNally and Intangible Rights
In McNally v. United States, 483 U.S. 350 (1987), the
Court held that the mail fraud statute does not reach "schemes to defraud
citizens of their intangible rights to honest and impartial government" . .
that the statute is "limited in scope to the protection of property rights."
See Carpenter v. United States, 484 U.S. 19, 25 (1987)
McNally and extending it to wire fraud statute); see also
v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . .
rejected the Government's contention that the federal mail fraud statute . .
protected the citizenry's 'intangible right' to good government . . . . ")
(Thomas, J., dissenting).|
In response to McNally, Congress passed Section 1346 of
18, United States Code, which provides that "For the purposes of this
the term 'scheme or artifice to defraud' includes a scheme or artifice to
another of the intangible right of honest services."
Section 1346, which became effective November 18, 1988, seemed to
resolve the intangible rights issue. See Madeoy, 912 F.2d
1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."),
cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf.
States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto
concerns bar the application of section 1346 to pre-1988 conduct). In
States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for
en banc pending, however, the court concluded that the wording of §
"simply does not effect a change in the portion of the McNally
which held that the mail fraud statute does not reach 'schemes to defraud
citizens of their intangible rights to honest and impartial government.'"
[cited in USAM 9-43.100]