SKILLING v. UNITED STATES
No. 08-1394
Supreme Court of the United States
Argued March 1, 2010—Decided June 24, 2010
561 U.S. 358
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Kagan, Acting Assistant Attorney General Raman, former Assistant Attorney General Breuer, Nina Goodman, David A. O‘Neil, Joel Gershowitz, and Kevin Gingras.*
JUSTICE GINSBURG delivered the opinion of the Court.
In 2001, Enron Corporation, then the seventh highest-revenue-grossing company in America, crashed into bankruptcy. 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 conspiracy to commit “honest-services” wire fraud,
Answering no to both questions, the Fifth Circuit affirmed Skilling‘s convictions. We conclude, in common with the Court of Appeals, that Skilling‘s fair-trial argument fails;
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 February 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. Department of Justice formed an Enron Task Force, comprising prosecutors and Federal Bureau of Investigation agents from around the Nation. The Government‘s investigation uncovered an elaborate conspiracy to prop up Enron‘s short-run stock prices by overstating 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
These three defendants, the indictment alleged,
“engaged in a wide-ranging scheme to deceive the investing 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 representations 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 conspiracy 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, Skilling, aided by media experts, submitted hundreds of news reports detailing Enron‘s downfall; he also presented affidavits from
The U. S. District Court for the Southern District of Texas, in accord with rulings in two earlier instituted Enron-related prosecutions,2 denied the venue-transfer motion. Despite “isolated incidents of intemperate commentary,” 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. 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.3
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 question-
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 information.” Id., at 9539. The court converted Skilling‘s submission, 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 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.4
On December 28, 2005, three weeks before the date scheduled for the commencement of trial, Causey pleaded guilty. Skilling‘s attorneys immediately requested a continuance, and the District Court agreed to delay the proceedings 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 further 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
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 followup 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
Voir dire began on January 30, 2006. The District Court first emphasized to the venire the importance of impartiality 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, conscientiously and impartially serve if selected.” Id., at 823a-824a. In response to the court‘s query whether any prospective 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
By the end of the day, the court had qualified 38 prospective jurors, a number sufficient, allowing for peremptory 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 peremptories to exclude them had he not exhausted his supply by striking
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 four-month trial and nearly five days of deliberation, the jury found Skilling guilty of 19 counts, including 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 prejudice stemming from Causey‘s guilty plea and from the large number of victims in Houston—from the “[t]housands of Enron employ-
The Court of Appeals stated, however, that “the presumption [of prejudice] is rebuttable,” and it therefore examined the voir dire to determine whether “the District Court empaneled 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, Skilling 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 for Defendant-Appellant Skilling in No. 06-20885 (CA5), p. 65, n. 21.
Arguing that the Fifth Circuit erred in its consideration of these claims, Skilling sought relief from this Court. We granted certiorari, 558 U. S. 945 (2009), and now affirm in
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 presumption 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 prejudice contaminate Skilling‘s jury?10
A
1
The Sixth Amendment secures to criminal defendants the right to trial by an impartial jury. By constitutional design, that trial occurs “in the State where the . . . Crimes . . .
378 have been committed.”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 influence, 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
We begin our discussion by addressing the presumption of prejudice from which the Fifth Circuit‘s analysis in Skilling‘s case proceeded. The foundation 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 occurred, 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 Louisiana 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 transcript of the voir dire,” that “[t]he kangaroo court proceedings” 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 public
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 characterized as “months [of] virulent publicity about Sheppard and the murder,” did not alone deny due process, 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. Florida, 421 U. S. 794, 798-799 (1975).12 See also, e. g., Patton v. Yount, 467
3
Relying on Rideau, Estes, and Sheppard, Skilling asserts 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 differences sepa
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 murder 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 individuals 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 population of over 3 million, and in which, unfortunately, hundreds 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
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 dramati
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 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. See App. 700a; id., at 785a; Yount, 467 U. S., at 1032, 1034.
Finally, and of prime significance, Skilling‘s jury acquitted him of nine insider-trading counts. Similarly, earlier instituted Enron-related prosecutions yielded no overwhelming 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 presumption. See, e. g., United States v. Arzola-Amaya, 867 F. 2d 1504, 1514
4
Skilling‘s trial, in short, shares little in common with those in which we approved a presumption of juror prejudice. The Fifth Circuit reached the opposite conclusion based primarily on the magnitude and negative tone of media attention directed at Enron. But “pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.” Nebraska Press Assn. v. Stuart, 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 particularly likely to produce prejudice, and Houston‘s size and diversity diluted the media‘s impact.17
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 identification and inspection of prospective jurors’ connections to Enron, the extensive screening questionnaire and followup voir dire were well suited to that task. And hindsight shows the efficacy of these devices; as we discuss infra, at 389-390, 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
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
B
We next consider whether actual prejudice infected Skilling‘s jury. Voir dire, Skilling asserts, did not adequately detect and defuse juror bias. “[T]he record . . . affirmatively confirm[s]” prejudice, he maintains, because several seated jurors “prejudged his guilt.” Brief for Petitioner 21. We disagree with Skilling‘s characterization of the voir dire and the jurors selected through it.
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 Constitution 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, 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 assessments of the media‘s impact on jurors should be mindful that their judgments lack the on-the-spot comprehension of the situation possessed by trial judges.
Reviewing courts are properly resistant to second-guessing the trial judge‘s estimation of a juror‘s impartiality, 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 intimate and immediate basis for assessing a venire member‘s fitness for jury
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
As noted, supra, at 370-372, and n. 4, the District Court initially screened venire members by eliciting their responses to a comprehensive 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 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 assessing the quality of voir dire as a whole.“).22 In other Enron-related prose-
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 preventing the spread of any prejudicial information to other venire members. See Mu‘Min, 500 U. S., at 425. To encourage candor, the court repeatedly admonished that there were “no right and wrong answers to th[e] questions.” E. g., App. 843a. The court denied Skilling‘s request 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 followup questions of every prospective juror brought to the bench for colloquy. Skilling‘s counsel declined to ask anything of more than half of the venire members questioned 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 untouched by Enron‘s collapse.24 Eleven of the seated jurors and alter-
The questionnaires confirmed that, whatever community prejudice existed in Houston generally, Skilling‘s jurors were not under its sway.28 Although many expressed 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 [Skil-
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 448 (dissent). See also, e. g., post, at 441-442, 458, 460, 464. We disagree with that characterization of Irvin.
The facts of Irvin are worlds apart from those presented 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 juvenile, his convictions for arson almost 20 years previously, 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 determination, on the other hand, of the prosecutor to secure the death penalty, and that [Irvin] had confessed 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 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 second individual]; the murder of [a third individual], and the slaughter of three members of [a different family].‘” Ibid.
“[N]ewspapers in which the[se] stories appeared were delivered regularly to approximately 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 community “was clearly reflected in the sum total of the voir dire“: “370 prospective jurors or almost 90% of those examined 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
In this case, as noted supra, at 382-383, news stories about Enron contained nothing resembling the horrifying information 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 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, exhibited nothing like the display of bias shown in Irvin. See supra, at 389-392 (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 444 (dissent) (distinguishing Mu‘Min from Irvin on similar bases: the “offense occurred in [a large] metropolitan area,” media “coverage 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 affirmed on their questionnaires that they would have no trouble basing
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 seating of any juror who should have been dismissed for cause
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 460-461 (dissent). Juror 11 stated that “greed on Enron‘s part” triggered the company‘s bankruptcy and that corporate executives, 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 assertions of impartiality credible. Id., at 858a; cf. supra, at 394, n. 30. We agree with the
Skilling also objected at trial to the seating of six specific jurors whom, he said, he would have excluded had he not already exhausted his peremptory challenges. See supra, at 374-375. Juror 20, he observes, “said she was ‘angry’ about Enron‘s collapse and that she, too, had been ‘forced 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 understanding that the Government would “have to prove” his guilt, id., at 937a. In response to followup 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 invariably 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]
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 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 followup 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 individuals from his jury, he cannot credibly assert they displayed 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 determine the facts impartially. “It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and render a ver-
III
We next consider whether Skilling‘s conspiracy conviction was premised on an improper theory of honest-services wire fraud. The honest-services statute,
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) (internal quotation marks omitted). In 1909, Congress 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.”
In an opinion credited with first presenting the intangible-rights theory, Shushan v. United States, 117 F. 2d 110 (1941), the Fifth Circuit reviewed the mail-fraud prosecution 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 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. 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 betrayed 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 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] relationship for the purpose of causing the employee to breach his duty [to his employer,] he in effect is defrauding the employer of a lawful right. The actual deception that is practised is in the continued representation 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 kickbacks 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 theory 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 companies the
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 services.”§ 1346 .
B
Congress, Skilling charges, reacted quickly but not clearly: He asserts that
According to Skilling,
In urging invalidation of
We agree that
1
There is no doubt that Congress intended
“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 deprive others
2
Satisfied that Congress, by enacting
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 construction. See,
Arguing against any limiting construction, Skilling contends that it is impossible to identify a salvageable honest-services core; “the pre-McNally caselaw,” he asserts, “is a
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 States 42, and n. 4 (citing dozens of examples).41 Indeed, the McNally case itself, which spurred Congress to enact
As already noted, supra, at 400-401, the honest-services doctrine had its genesis in prosecutions involving bribery allegations. See Shushan, 117 F. 2d, at 115 (public sector); 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
In view of this history, there is no doubt that Congress intended
3
The Government urges us to go further by locating within
Neither of these contentions withstands close inspection. McNally, as we have already observed, supra, at 401-402, 407, involved a classic kickback scheme: A public official, in exchange for routing Kentucky‘s insurance business 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 contracts. See id., at 352-353. Reading
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 nondisclosure and concealment of material information,” Mandel, 591 F. 2d, at 1361, they reached no consensus on which schemes qualified. In light of the relative infrequency of conflict-of-interest prosecutions in comparison to bribery and kickback charges, and the intercircuit inconsistencies they produced, we conclude that a reasonable limiting construction of
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 [
In sum, our construction of
4
As to fair notice, “whatever the school of thought concerning the scope and meaning of”
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 proscribing—and defining—similar crimes. See, e. g.,
C
It remains to determine whether Skilling‘s conduct violated
The Government did not, at any time, allege that Skilling 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 [Skilling] engaged in bribery.“). It is therefore clear that, as we read
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 (1957) (constitutional error occurs when a jury is instructed 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 confirmed, in Hedgpeth v. Pulido, 555 U.S. 57 (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 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.
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 decision upholding Skilling‘s conviction for so-called “honest-services fraud” must be reversed, but for a different reason. In my view, the specification in
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 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939),
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 404. 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 407. 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 kickbacks.”
Investigation into the meaning of “the pre-McNally honest-services doctrine” might logically begin with 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 statutes beyond deceptive schemes to obtain property. 483 U.S., at 360. If the repudiated cases stood for a prohibition of “bribery and kickbacks,” one would have expected those words to appear in the opinion‘s description of the cases. In fact,
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 participated in public decisions, see, e. g., United States v. Gray, 790 F. 2d 1290, 1295-1296 (CA6 1986) (per curiam) (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 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 general 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,
This indeterminacy does not disappear if one assumes that the pre-McNally cases developed a federal, common-law fiduciary duty; the duty remained hopelessly undefined. 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 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
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 (collecting 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 material 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. Bronston, 658 F. 2d 920, 926 (CA2 1981) (no). One opinion upheld a mail-fraud conviction on the ground that the 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, supra, 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
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 Courts of Appeals’ decisions before McNally,” ante, at 404—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
II
The Court is aware of all this. It knows that adopting by reference “the pre-McNally honest-services doctrine,” ante, at 407, is adopting by reference nothing more precise than
Even if that conclusion followed from its premises, it would not suffice to eliminate the vagueness of the statute. 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 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 limitation the statute does not answer the question, “What is the criterion of guilt?”
But that is perhaps beside the point, because it is obvious 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 smorgasbord offerings of varieties of
Thus, the Court‘s claim to “respec[t] the legislature,” ante, at 409, 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 kickbacks. Perhaps it is true that “Congress intended
Arriving at that conclusion requires not interpretation but invention. The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster. I know of no precedent for such “paring down,”3 and it seems to me clearly beyond judicial power. This is not, as the Court claims, ante, at 406, simply a matter of adopting a “limiting construction” in the face of potential unconstitu-
The canon of constitutional avoidance, on which the Court so heavily relies, see ante, at 405-406, states that “when the constitutionality of a statute is assailed, if the 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 alternatives.” Until today, no one has thought (and there is no basis for thinking) that the honest-services statute prohibited only bribery and kickbacks.
I certainly agree with the Court that we must, “if we can,” uphold, rather than “condemn,” Congress‘s enactments, ante, at 403. 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
III
A brief word about the appropriate remedy. As I noted supra, at 416, Skilling has argued that
I would therefore reverse Skilling‘s conviction under
*
*
*
It is hard to imagine a case that more clearly fits the description of what Chief Justice Waite said could not be done, in a colorful passage oft-cited in our vagueness opinions, United States v. Reese, 92 U. S., at 221:
“The question, then, to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government. . . .
“To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.”
JUSTICE ALITO, concurring in part and concurring in the judgment.
I join the judgment of the Court and all but Part II of the Court‘s opinion. I write separately to address petitioner‘s jury-trial argument.
The
Petitioner advances a very different understanding of the jury-trial right. Where there is extraordinary pretrial publicity and community hostility, he contends, a court must presume juror prejudice and thus grant a change of venue. Brief for Petitioner 25-34. I disagree. Careful voir dire can often ensure the selection of impartial jurors even where pretrial media coverage has generated much hostile community sentiment. Moreover, once a jury has been selected, there are measures that a trial judge may take to insulate jurors from media coverage during the course of the trial. What the
The rule that petitioner advances departs from the text of the
Petitioner relies chiefly on three cases from the 1960‘s—Sheppard v. Maxwell, 384 U. S. 333 (1966), Estes v. Texas, 381 U. S. 532 (1965), and Rideau v. Louisiana, 373 U. S. 723 (1963). I do not read those cases as demanding petitioner‘s suggested approach. As the Court notes, Sheppard and Estes primarily “involved media interference with courtroom proceedings during trial.” Ante, at 382, n. 14; see also post, at 446 (SOTOMAYOR, J., concurring in part and dissenting in part). Rideau involved unique events in a small community.
I share some of JUSTICE SOTOMAYOR‘s concerns about the adequacy of the voir dire in this case and the trial judge‘s findings that certain jurors could be impartial. See post, at
Because petitioner, in my view, is not entitled to a reversal of the decision below on the jury-trial question that is before us, I join the judgment of the Court in full.
JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and JUSTICE BREYER join, concurring in part and dissenting in part.
I concur in the Court‘s resolution of the honest-services fraud question and join Part III of its opinion. I respectfully dissent, however, from the Court‘s conclusion that Jeffrey Skilling received a fair trial before an impartial jury. Under our relevant precedents, the more intense the public‘s antipathy toward a defendant, the more careful a court must be to prevent that sentiment from tainting the jury. In this case, passions ran extremely high. The sudden collapse of Enron directly affected thousands of people in the Houston area and shocked the entire community. The accompanying barrage of local media coverage was massive in volume and often caustic in tone. As Enron‘s one-time chief executive officer (CEO), Skilling was at the center of the storm. Even if these extraordinary circumstances did not constitutionally compel a change of venue, they required the District Court to conduct a thorough voir dire in which prospective jurors’ attitudes about the case were closely scrutinized. The District Court‘s inquiry lacked the necessary thoroughness and left serious doubts about whether the jury empaneled to decide Skilling‘s case was capable of rendering an impartial decision based solely on the evidence presented in the courtroom. Accordingly, I would grant Skilling relief on his fair-trial claim.
The majority understates the breadth and depth of community hostility toward Skilling and overlooks significant deficiencies in the District Court‘s jury selection process. The failure of Enron wounded Houston deeply. Virtually overnight, what had been the city‘s “largest, most visible, and most prosperous company,” its “foremost social and charitable force,” and “a source of civic pride” was reduced to a “shattered shell.” App. 11, 13, pp. 649a-650a, 1152a. Thousands of the company‘s employees lost their jobs and saw their retirement savings vanish. As the effects rippled through the local economy, thousands of additional jobs disappeared, businesses shuttered, and community groups that once benefited from Enron‘s largesse felt the loss of millions of dollars in contributions. See, e. g., 3 Supp. Record 1229, 1267; see also 554 F. 3d 529, 560 (CA5 2009) (“Accounting firms that serviced Enron‘s books had less work, hotels had more open rooms, restaurants sold fewer meals, and so on“). Enron‘s community ties were so extensive that the entire local U. S. Attorney‘s Office was forced to recuse itself from the Government‘s investigation into the company‘s fall. See 3 Supp. Record 608 (official press release).
With Enron‘s demise affecting the lives of so many Houstonians, local media coverage of the story saturated the community. According to a defense media expert, the Houston Chronicle—the area‘s leading newspaper—assigned as many as 12 reporters to work on the Enron story full time. App. 568a-569a. The paper mentioned Enron in more than 4,000 articles during the 3-year period following the company‘s December 2001 bankruptcy filing. Hundreds of these articles discussed Skilling by name. See 3 Supp. Record 2114. Skilling‘s expert, a professional journalist and academic with 30 years’ experience, could not “recall another instance where a local paper dedicated as many resources to a single topic over such an extended period of time as the Houston Chronicle . . . dedicated to Enron.” App. 132, at 570a.
While many of the stories were straightforward news items, many others conveyed and amplified the community‘s outrage at the top executives perceived to be responsible for the company‘s bankruptcy. A Chronicle report on Skilling‘s 2002 testimony before Congress is typical of the coverage. It began, “Across Houston, Enron employees watched former chief executive Jeffrey Skilling‘s congressional testimony on television, turning incredulous, angry and then sarcastic by turns, as a man they knew as savvy and detail-oriented pleaded memory failure and ignorance about critical financial transactions at the now-collapsed energy giant.” App. 1218a. “‘He is lying; he knew everything,’ said [an employee], who said she had seen Skilling frequently over her 18 years with the firm, where Skilling was known for his intimate grasp of the inner doings at the company. ‘I am getting sicker by the minute.‘” Id., at 1219a. A companion piece quoted a local attorney who called Skilling an “idiot” who was “in denial“; he added, “I‘m glad [Skilling‘s] not my client.” Id., at 592a-593a (internal quotation marks omitted).
Articles deriding Enron‘s senior executives were juxtaposed with pieces expressing sympathy toward and solidarity with the company‘s many victims. Skilling‘s media expert counted nearly a hundred victim-related stories in the Chronicle, including a multi-page layout entitled “The Faces of Enron,” which poignantly described the gut-wrenching experiences of former employees who lost vast sums of money, faced eviction from their homes, could not afford Christmas gifts for their children, and felt “scared,” “hurt,” “humiliat[ed],” “helpless,” and “betrayed.” Id., 71, at
When a federal grand jury indicted Skilling, Lay, and Richard Causey—Enron‘s former chief accounting officer—in 2004 on charges of conspiracy to defraud, securities fraud, and other crimes, the media placed them directly in their crosshairs. In the words of one article, “there was one thing those whose lives were touched by the once-exalted company all seemed to agree upon: The indictment of former Enron CEO Jeff Skilling was overdue.” App. 1393a. Scoffing at Skilling‘s attempts to paint himself as “a victim” of his subordinates, id., at 1394a, the Chronicle derided “the doofus defense” that Lay and Skilling were expected to offer, id., at 1401a.1 The Chronicle referred to the coming Skilling/Lay trial as “the main event” and “The Big One,” which would
Citing the widely felt sense of victimhood among Houstonians and the voluminous adverse publicity, Skilling moved in November 2004 for a change of venue.3 The District Court denied the motion, characterizing the media coverage as largely “objective and unemotional.” App. to Brief for United States 11a. Voir dire, it concluded, would provide an effective means to “ferret out any bias” in the jury pool. Id., at 18a; see ante, at 370.
To that end, the District Court began the jury selection process by mailing screening questionnaires to 400 prospective jurors in November 2005. The completed questionnaires of the 283 respondents not excused for hardship dramatically illustrated the widespread impact of Enron‘s collapse on the Houston community and confirmed the intense animosity of Houstonians toward Skilling and his codefendants. More than one-third of the prospective jurors (approximately 99 of 283, by my count) indicated that they
On December 28, 2005, shortly after the questionnaires had been returned, Causey pleaded guilty. The plea was covered in lead newspaper and television stories. A front-page headline in the Chronicle proclaimed that “Causey‘s plea wreaks havoc for Lay, Skilling.” Record 12049, n. 13; see also ibid. (quoting a former U. S. attorney who described the plea as “a serious blow to the defense“). A Chronicle editorial opined that “Causey‘s admission of securities fraud . . . makes less plausible Lay‘s claim that most of the guilty
With the trial date quickly approaching, Skilling renewed his change-of-venue motion, arguing that both the questionnaire responses and the Causey guilty plea confirmed that he could not receive a fair trial in Houston. In the alternative, Skilling asserted that “defendants are entitled to a more thorough jury selection process than currently envisioned by the [c]ourt.” Id., at 12067. The court had announced its intention to question individual jurors at the bench with one attorney for each side present, and to complete the voir dire in a single day. See, e. g., id., at 11804-11805, 11808. Skilling proposed, inter alia, that defense counsel be afforded a greater role in questioning, id., at 12074; that jurors be questioned privately in camera or in a closed courtroom where it would be easier for counsel to consult with their colleagues, clients, and jury consultants, id., at 12070-12072; and that the court “avoid leading questions,” which “tend to [e]licit affirmative responses from prospective jurors that may not reflect their actual views,” id., at 12072. At a minimum, Skilling asserted, the court should grant a continuance of at least 30 days and send a revised questionnaire to a new group of prospective jurors. Id., at 12074-12075.
The District Court denied Skilling‘s motion without a hearing, stating in a brief order that it was “not persuaded that the evidence or arguments urged by defendants . . . establish that pretrial publicity and/or community prejudice raise a presumption of inherent jury prejudice.” Id., at 14115. According to the court, the “jury questionnaires sent to the remaining members of the jury panel and the court‘s voir dire examination of the jury panel provide adequate safeguards to defendants and will result in the selection of a fair and impartial jury in this case.” Id., at 14115-14116. The court did agree to delay the trial by two weeks, until January 30, 2006.
It is against this backdrop of widespread community impact and pervasive pretrial publicity that jury selection in Skilling‘s case unfolded. Approximately 160 prospective jurors appeared for voir dire at a federal courthouse located “about six blocks from Enron‘s former headquarters.” 554 F. 3d, at 561. Addressing them as a group, the District Court began by briefly describing the case and providing a standard admonition about the need to be fair and impartial and to decide the case based solely on the trial evidence and jury instructions. The court then asked whether anyone had “any reservations about your ability to conscientiously and fairly follow these very important rules.” App. 815a. Two individuals raised their hands and were called forward
The court proceeded to question individual jurors from the bench. As the majority recounts, ante, at 373-374, the court asked them a few general yes/no questions about their exposure to Enron-related news, often variations of, “Do you recall any particular articles that stand out that you‘ve read about the case?” App. 850a. The court also asked about questionnaire answers that suggested bias, focusing mainly on whether, notwithstanding seemingly partial comments, the prospective jurors believed they “could be fair” and “put the government to its proof.” Id., at 852a. Counsel were permitted to follow up on issues raised by the court. The court made clear, however, that its patience would be limited, see, e. g., id., at 879a, and questioning tended to be brief—generally less than five minutes per person. Even so, it exposed disqualifying biases among several prospective jurors who had earlier expressed no concerns about their ability to be fair.7
Skilling‘s trial commenced the next day and lasted four months. After several days of deliberations, the jury found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of making false representations to auditors, and 1 count of insider trading; it acquitted on 9 insider trading counts. The jury found Lay guilty on all counts.
On appeal, Skilling asserted that he had been denied his constitutional right to a fair trial before an impartial jury. Addressing this claim, the Court of Appeals began by disavowing the District Court‘s findings concerning “community hostility.” There was, the court concluded, “sufficient inflammatory pretrial material to require a finding of presumed prejudice, especially in light of the immense volume of coverage.” 554 F. 3d, at 559. “[P]rejudice was [also] inherent in an alleged co-conspirator‘s well-publicized decision to plead guilty on the eve of trial.” Ibid. The Court of Appeals, moreover, faulted the District Court for failing to “consider the wider context.” Id., at 560. “[I]t was not enough for the court merely to assess the tone of the news reporting. The evaluation of the volume and nature of reporting is merely a proxy for the real inquiry: whether there could be a fair trial by an impartial jury that was not influenced by outside, irrelevant sources.” Ibid. (internal quotation marks and footnote omitted). According to the Court of Appeals, “[t]he district court seemed to overlook that the
Having determined that “Skilling was entitled to a presumption of prejudice,” the Court of Appeals proceeded to explain that “the presumption is rebuttable, ... and the government may demonstrate from the voir dire that an impartial jury was actually impanelled.” Id., at 561 (internal quotation marks omitted). Describing the voir dire as “exemplary,” “searching,” and “proper and thorough,” id., at 562, the court concluded that “[t]he government [had] met its burden of showing that the actual jury that convicted Skilling was impartial,” id., at 564-565. On this basis, the Court of Appeals rejected Skilling‘s claim and affirmed his convictions.
II
The
The Court of Appeals incorporated the concept of presumptive prejudice into a burden-shifting framework: Once the defendant musters sufficient evidence of community hostility, the onus shifts to the Government to prove the impartiality of the jury. The majority similarly envisions a fixed point at which public passions become so intense that prejudice to a defendant‘s fair-trial rights must be presumed. The majority declines, however, to decide whether the presumption is rebuttable, as the Court of Appeals held.
The inquiry is necessarily case specific. In selecting a jury, a trial court must take measures adapted to the intensity, pervasiveness, and character of the pretrial publicity and community animus. Reviewing courts, meanwhile, must assess whether the trial court‘s procedures sufficed under the circumstances to keep the jury free from disqualifying bias. Cf. Murphy v. Florida, 421 U. S. 794, 799 (1975) (scrutinizing the record for “any indications in the totality of circumstances that petitioner‘s trial was not fundamentally fair“). This Court‘s precedents illustrate the sort of steps required in different situations to safeguard a defendant‘s constitutional right to a fair trial before an impartial jury.
At one end of the spectrum, this Court has, on rare occasion, confronted such inherently prejudicial circumstances that it has reversed a defendant‘s conviction “without pausing to examine ... the voir dire examination of the members of the jury.” Rideau v. Louisiana, 373 U. S. 723, 727 (1963). In Rideau, repeated television broadcasts of the defendant‘s confession to murder, robbery, and kidnaping so thoroughly poisoned local sentiment as to raise doubts that even the most careful voir dire could have secured an impartial jury. A change of venue, the Court determined, was thus the only way to ensure a fair trial. Ibid.; see also 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 23.2(a), p. 264 (3d ed. 2007) (hereinafter LaFave) (“The best reading
As the majority describes, ante, at 379-380, this Court reached similar conclusions in Estes v. Texas, 381 U. S. 532 (1965), and Sheppard, 384 U. S. 333. These cases involved not only massive pretrial publicity but also media disruption of the trial process itself. Rejecting the argument that the defendants were not entitled to relief from their convictions because they “ha[d] established no isolatable prejudice,” the Court described the “untoward circumstances” as “inherently suspect.” Estes, 381 U. S., at 542, 544. It would have been difficult for the jurors not to have been swayed, at least subconsciously, by the “bedlam” that surrounded them. Sheppard, 384 U. S., at 355. Criticizing the trial courts’ failures “to protect the jury from outside influence,” id., at 358, the Court stressed that, “where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another [venue] not so permeated with publicity.” Id., at 363. Estes and Sheppard thus applied Rideau‘s insight that in particularly extreme circumstances even the most rigorous voir dire cannot suffice to dispel the reasonable likelihood of jury bias.
Apart from these exceptional cases, this Court has declined to discount voir dire entirely and has instead examined the particulars of the jury selection process to determine whether it sufficed to produce a jury untainted by pretrial publicity and community animus. The Court has recognized that when antipathy toward a defendant pervades the community there is a high risk that biased jurors will find their way onto the panel. The danger is not merely that some prospective jurors will deliberately hide their prejudices, but also that, as “part of a community deeply hostile to the accused,” “they may unwittingly [be] influ
Irvin offers an example of a case in which the trial court‘s voir dire did not suffice to counter the “wave of public passion” that had swept the community prior to the defendant‘s trial. 366 U. S., at 728. The local news media had “extensively covered” the crimes (a murder spree), “arous[ing] great excitement and indignation.” Id., at 719 (internal quotation marks omitted). Following Irvin‘s arrest, the press “blanketed” the community with “a barrage of newspaper headlines, articles, cartoons and pictures” communicating numerous unfavorable details about Irvin, including that he had purportedly confessed. Id., at 725. Nearly 90 percent of the 430 prospective jurors examined during the trial court‘s voir dire “entertained some opinion as to guilt—ranging in intensity from mere suspicion to absolute certainty.” Id., at 727. Of the 12 jurors seated, 8 “thought petitioner was guilty,” although “each indicated that notwithstanding his opinion he could render an impartial verdict.” Id., at 727, 724.
Despite the seated jurors’ assurances of impartiality, this Court invalidated Irvin‘s conviction for want of due process. “It is not required,” this Court declared, “that the jurors be totally ignorant of the facts and issues involved. ... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id., at 722-723. The Court emphasized, however, that a juror‘s word on this matter is not decisive, particularly when “the build-up of prejudice [in the community] is clear
The media coverage and community animosity in Irvin were particularly intense. In three subsequent cases, this Court recognized that high-profile cases may generate substantial publicity without stirring similar public passions. The jury selection process in such cases, the Court clarified, generally need not be as exhaustive as in a case such as Irvin. So long as the trial court conducts a reasonable inquiry into extrajudicial influences and the ability of prospective jurors to presume innocence and render a verdict based solely on the trial evidence, we would generally have no reason to doubt the jury‘s impartiality.8
The first of these cases, Murphy, 421 U. S. 794, involved a well-known defendant put on trial for a widely publicized Miami Beach robbery. The state trial court denied his motion for a change of venue and during voir dire excused 20 of the 78 prospective jurors for cause. Distinguishing Irvin, this Court saw no indication in the voir dire of “such hostility to [Murphy] by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” 421 U. S., at 800. Although some jurors “had a vague recollection of the robbery with which [Murphy] was charged and each had
In a second case, Yount, 467 U. S. 1025, the defendant was granted a new trial four years after being convicted of murder. He requested a change of venue, citing pretrial publicity and the widespread local knowledge that he had previously been convicted and had made confessions that would be inadmissible in court. The state trial court denied Yount‘s motion and seated a jury following a 10-day voir dire of 292 prospective jurors. Nearly all of the prospective jurors had heard of the case, and 77 percent “admitted they would carry an opinion into the jury box.” Id., at 1029. Declining to grant relief on federal habeas review, this Court stressed the significant interval between Yount‘s first trial—when “adverse publicity and the community‘s sense of outrage were at their height“—and his second trial, which “did not occur until four years later, at a time when prejudicial publicity was greatly diminished and community sentiment had softened.” Id., at 1032. While 8 of the 14 seated jurors and alternates had “at some time ... formed an opinion as to Yount‘s guilt,” the “particularly extensive” voir dire confirmed that “time had weakened or eliminated any” bias they once may have harbored. Id., at 1029-1030, 1034, n. 10, 1033. Accordingly, this Court concluded, “the trial court did not commit manifest error in finding that the jury as a whole was impartial.” Id., at 1032.
This Court most recently wrestled with the issue of pretrial publicity in Mu‘Min v. Virginia, 500 U. S. 415 (1991).
Rejecting Mu‘Min‘s attempt to analogize his case to Irvin, this Court observed that “the cases differ both in the kind of community in which the coverage took place and in extent of media coverage.” 500 U. S., at 429. Mu‘Min‘s offense occurred in the metropolitan Washington, D. C., area, “which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year.” Ibid. While the crime garnered “substantial” pretrial publicity, the coverage was not as pervasive as in Irvin and “did not contain the same sort of damaging information.” 500 U. S., at 429-430. Moreover, in contrast to Irvin, the seated jurors uniformly disclaimed having ever formed an opinion about the case. Given these circumstances, this Court rebuffed Mu‘Min‘s assertion that the trial court committed constitutional error by declining to “make precise inquiries about the contents of any news reports that potential jurors have read.” 500 U. S., at 424. The Court stressed, however, that its ruling was context specific: “Had the trial court in this case been confronted with the ‘wave of public passion’
III
It is necessary to determine how this case compares to our existing fair-trial precedents. Were the circumstances so inherently prejudicial that, as in Rideau, even the most scrupulous voir dire would have been “but a hollow formality” incapable of reliably producing an impartial jury? 373 U. S., at 726. If the circumstances were not of this character, did the District Court conduct a jury selection process sufficiently adapted to the level of pretrial publicity and community animus to ensure the seating of jurors capable of presuming innocence and shutting out extrajudicial influences?
A
Though the question is close, I agree with the Court that the prospect of seating an unbiased 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. Three considerations lead me to this conclusion. First, as the Court observes, ante, at 382, the size and diversity of the Houston community make it probable that the jury pool contained a nontrivial number of persons who were unaffected by Enron‘s collapse, neutral in their outlook, and unlikely to be swept up in the public furor. Second, media coverage of the case, while ubiquitous and often inflammatory, did not, as the Court points out, ante, at 382-383, contain a confession by Skilling or similar “smoking-gun” evidence of specific criminal acts. For many prospective jurors, the guilty plea of codefendant and alleged co-conspirator Causey, along with the pleas and convictions of other Enron executives, no doubt suggested guilt by association. But reasonable minds exposed to such information
B
In concluding that the voir dire “adequately detect[ed] and defuse[d] juror bias,” ante, at 385, the Court downplays the
In conducting this analysis, I am mindful of the “wide discretion” owed to trial courts when it comes to jury-related issues. Mu‘Min, 500 U. S., at 427; cf. ante, at 386-387. Trial courts are uniquely positioned to assess public sentiment and the credibility of prospective jurors. Proximity to events, however, is not always a virtue. Persons in the midst of a tumult often lack a panoramic view. “[A]ppellate tribunals [thus] have the duty to make an independent evaluation of the circumstances.” Sheppard, 384 U. S., at 362. In particular, reviewing courts are well qualified to inquire into whether a trial court implemented procedures adequate to keep community prejudices from infecting the jury. If the jury selection process does not befit the circumstances of the case, the trial court‘s rulings on impartiality are necessarily called into doubt. See Morgan, 504 U. S., at 729-730 (“‘Without an adequate voir dire the trial judge‘s responsibility to remove prospective jurors who will not be able impartially to follow the court‘s instructions and evaluate the evidence cannot be fulfilled‘” (quoting Rosales-Lopez v. United States, 451 U. S. 182, 188 (1981) (plurality opinion))); see also Mu‘Min, 500 U. S., at 451 (KENNEDY, J., dissenting) (“Our willingness to accord substantial deference to a trial court‘s finding of juror impartiality rests on our expectation that the trial court will conduct a sufficient voir dire to determine the credibility of a juror professing to be impartial“).
As the Court of Appeals apprehended, the District Court gave short shrift to the mountainous evidence of public hostility. For Houstonians, Enron‘s collapse was an event of once-in-a-generation proportions. Not only was the volume of media coverage “immense” and frequently intemperate, but “the sheer number of victims” created a climate in which animosity toward Skilling ran deep and the desire for conviction was widely shared. 554 F. 3d, at 559-560.
The level of public animus toward Skilling dwarfed that present in cases such as Murphy and Mu‘Min. The pretrial publicity in those cases consisted of dozens of news reports, most of which were “largely factual in nature.” Murphy, 421 U. S., at 802. There was no indication that the relevant communities had been captivated by the cases or had adopted fixed views about the defendants. In contrast, the number of media reports in this case reached the tens of thousands, and full-throated denunciations of Skilling were common. The much closer analogy is thus to Irvin, which similarly featured a “barrage” of media coverage and a “huge wave of public passion,” 366 U. S., at 725, 728, although even that case did not, as here, involve direct harm to entire segments of the community.10
Attempting to distinguish Irvin, the majority suggests that Skilling‘s economic offenses were less incendiary than Irvin‘s violent crime spree and that “news stories about Enron contained nothing resembling the horrifying information rife in reports about Irvin‘s rampage of robberies and murders.” Ante, at 394. Along similar lines, the District Court described “the facts of this case [as] neither heinous nor sensational.” App. to Brief for United States 10a. The majority also points to the four years that passed between
First, while violent crimes may well provoke widespread community outrage more readily than crimes involving monetary loss, economic crimes are certainly capable of rousing public passions, particularly when thousands of unsuspecting people are robbed of their livelihoods and retirement savings. Indeed, the record in this case is replete with examples of visceral outrage toward Skilling and other Enron executives. See, e. g., Record 39946 (front-page, eve-of-trial story describing “the hurt and anger and resentment ... churn[ing] inside” the people of Houston). Houstonians compared Skilling to, among other things, a rapist, an axe murderer, and an al Qaeda terrorist.11 As one commentator observed, “[i]t‘s a sign of how shocked Houstonians are about Enron‘s ignominious demise that Sept. 11 can be invoked—and is frequently—to explain the shock of the company‘s collapse.” 3 Supp. Record 544. The bad blood was so strong that Skilling and other top executives hired private security to protect themselves from persons inclined to take the law into their own hands. See, e. g., App. 1154a (“After taking the temperature of Enron‘s victims, [a local lawyer] says the Enron executives are wise to take security precautions“).
Any doubt that the prevailing mindset in the Houston community remained overwhelmingly negative was dispelled by prospective jurors’ responses to the written questionnaires. As previously indicated, supra, at 431-433, more than one-third of the prospective jurors either knew victims of Enron‘s collapse or were victims themselves, and two-thirds gave responses suggesting an antidefendant bias. In many instances their contempt for Skilling was palpable. See nn. 4, 6, supra. Only a small fraction of the prospective jurors raised no red flags in their responses. And this was before Causey‘s guilty plea and the flurry of news reports that accompanied the approach of trial. One of Skilling‘s experts, a political scientist who had studied pretrial publicity “for over 35 years” and consulted in more than 200 high-profile cases (in which he had recommended against venue changes more often than not), “c[a]me to the conclusion that the extent and depth of bias shown in these questionnaires is the highest or at least one of the very highest I have ever encountered.” App. ¶ 12, 7, at 783a, 785a (emphasis deleted).
Given the extent of the antipathy evident both in the community at large and in the responses to the written questionnaire, it was critical for the District Court to take “strong measures” to ensure the selection of “an impartial jury free from outside influences.” Sheppard, 384 U. S., at 362. As this Court has recognized, “[i]n a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question.” Murphy, 421 U. S., at 803; see also Groppi v. Wisconsin, 400 U. S. 505, 510 (1971) (“[A]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere” (quoting Frank v. Mangum, 237 U. S. 309, 349 (1915) (Holmes, J., dissenting))). Perhaps because it had underestimated the public‘s antipathy toward Skilling, the District Court‘s 5-hour voir dire was manifestly insufficient to identify and remove biased jurors.13
The court also rarely asked prospective jurors to describe personal interactions they may have had about the case, or to consider whether they might have difficulty avoiding discussion of the case with family, friends, or colleagues during the course of the lengthy trial. The tidbits of information that trickled out on these subjects provided cause for concern. In response to general media-related questions, several prospective jurors volunteered that they had spoken with others about the case. Juror 74, for example, indicated that her husband was the “news person,” that they had “talked about it,” that she had also heard things “from work,” and that what she heard was “all negative, of course.” App. 948a. The court, however, did not seek elaboration
in high-profile cases so long as the trial court ensures that the scope of the voir dire is tailored to the circumstances.
Prospective jurors’ personal interactions, moreover, may well have left them with the sense that the community was counting on a conviction. Yet this too was a subject the District Court did not adequately explore. On the few occasions when prospective jurors were asked whether they would feel pressure from the public to convict, they acknowledged that it might be difficult to return home after delivering a not-guilty verdict. Juror 75, for instance, told the court, “I think a lot of people feel that they‘re guilty. And maybe they‘re expecting something to come out of this trial.” Id., at 956a. It would be “tough,” she recognized, “to vote not guilty and go back into the community.” Id., at 957a; see also id., at 852a (Juror 10) (admitting “some hesitancy” about “telling people the government didn‘t prove its case“).
With respect to potential nonmedia sources of bias, the District Court‘s exchange with Juror 101 is particularly troubling.15 Although Juror 101 responded in the negative when asked whether she had “read anything in the newspaper that [stood] out in [her] mind,” she volunteered that she “just heard that, between the two of them, [Skilling and Lay] had $43 million to contribute for their case and that there was an insurance policy that they could collect on, also.” Id., at 998a. This information, she explained, “was just something I overheard today—other jurors talking.” Ibid. It seemed suspicious, she intimated, “to have an insurance policy ahead of time.” Id., at 999a. The court advised her that “most corporations provide insurance for their officers and directors.” Ibid. The court, however, did not investigate the matter further, even though it had earlier instructed prospective jurors not to talk to each other about the case. Id.,
The topics that the District Court did cover were addressed in cursory fashion. Most prospective jurors were asked just a few yes/no questions about their general exposure to media coverage and a handful of additional questions concerning any responses to the written questionnaire that suggested bias. In many instances, their answers were unenlightening.16 Yet the court rarely sought to draw them out with open-ended questions about their impressions of Enron or Skilling and showed limited patience for counsel‘s followup efforts. See, e. g., id., at 879a, 966a.17 When pro-
These deficiencies in the form and content of the voir dire questions contributed to a deeper problem: The District Court failed to make a sufficiently critical assessment of prospective jurors’ assurances of impartiality. Although the Court insists otherwise, ante, at 392, the voir dire transcript indicates that the District Court essentially took jurors at
to test the court‘s boundaries at every turn. Moreover, the court‘s perfunctory exchanges with prospective jurors often gave counsel no clear avenue for further permissible inquiry.
Worse still, the District Court on a number of occasions accepted declarations of impartiality that were equivocal on their face. Prospective jurors who “hope[d]” they could presume innocence and did “not necessarily” think Skilling was guilty were permitted to remain in the pool. App. 932a, 857a. Juror 61, for instance, wrote of Lay on her questionnaire, “Shame on him.” Id., at 931a. Asked by the court about this, she stated that, “innocent or guilty, he was at the helm” and “should have known what was going on at the company.” Ibid.; see also id., at 934a (Skilling is “probably” “in the same boat as” Lay). The court then asked, “[C]an you presume, as you start this trial, that Mr. Lay is innocent?” Id., at 932a. She responded, “I hope so, but you know. I don‘t know. I can‘t honestly answer that one way or the other.” Ibid.; see also id., at 933a (“I bring in my past history. I bring in my biases. I would like to think I could rise above those, but I‘ve never been in this situation before. So I don‘t know how I could honestly answer that question one way or the other. ... I do have some concerns“). Eventually, however, Juror 61 answered “Yes” when the court asked if she would be able to acquit if she had “a reasonable doubt that the defendants are guilty.” Id., at 933a-934a. Challenging her for cause, defense counsel insisted that they had not received “a clear and unequivocal answer” about her ability to be fair. Ibid. The court denied the challenge, stating, “You know, she tried.” Ibid.
3
The majority takes solace in the fact that most of the persons actually seated as jurors and alternates “specifically stated that they had paid scant attention to Enron-related
Juror 11 wrote that he “work[ed] with someone who worked at Enron“; that he got Enron-related news from the “Houston Chronicle, Channel 2 News, Channel 13 News, O‘Reilly Factor, [and] talking with friends and co-workers“; that he regularly visited the Chronicle Web site; that “greed on Enron‘s part” caused the company‘s collapse; and that “[a] lot of people were hurt financially.” Supp. App. 26sa-30sa. During questioning, he stated that he would have “no
the seated jurors and alternates checked the ‘yes’ box” on the written questionnaire when “asked whether they ‘ha[d] an opinion about [Skilling],‘” ante, at 391, is of minimal significance, particularly given that the Causey plea and the impending trial received significant media coverage after the questionnaires were submitted.
In assessing the likelihood that bias lurked in the minds of at least some of these seated jurors, I find telling the way in
Magazine, local TV news [and] radio, friends, family, [and] co-workers, [and] internet news sources“; and noted that what stood out was “[t]he employees and retirees that lost their savings“).
The majority suggests, ante, at 383-384, 395, that the jury‘s decision to acquit Skilling on nine relatively minor insider trading charges confirms its impartiality. This argument, however, mistakes partiality with bad faith or blind vindictiveness. Jurors who act in good faith and sincerely believe in their own fairness may nevertheless harbor disqualifying prejudices. Such jurors may well acquit where evidence is wholly lacking, while subconsciously resolving closer calls against the defendant rather than giving him the benefit of the doubt. Cf. United States v. McVeigh, 918 F. Supp. 1467, 1472 (WD Okla. 1996) (Prejudice “may go un-
* * *
In sum, I cannot accept the majority‘s conclusion that voir dire gave the District Court “a sturdy foundation to assess fitness for jury service.” Cf. ante, at 395. Taken together, the District Court‘s failure to cover certain vital subjects, its superficial coverage of other topics, and its uncritical acceptance of assurances of impartiality leave me doubtful that Skilling‘s jury was indeed free from the deep-seated animosity that pervaded the community at large. “[R]egardless of the heinousness of the crime charged, the apparent guilt of the offender[,] or the station in life which he occupies,” our system of justice demands trials that are fair in both appearance and fact. Irvin, 366 U. S., at 722. Because I do not believe Skilling‘s trial met this standard, I would grant him relief.
Notes
“Q. Do you remember reading any particular articles about this case or Mr. Lay or Mr. Skilling?
“A. Not until just recently this week, but nothing—
“Q. And there have been a lot of articles this week.
“A. Yeah.
“Q. Do you recall any particular articles you‘ve read in the last week or so?
“A. Not word for word, no.
“Q. Did you read all the articles in the Sunday “Chronicle“?
“A. Some of them.
“Q. Which ones do you remember reading?
“A. The one about the trial, I think, and how the trial was going to work.” Id., at 873a-874a.
Briefs of amici curiae were filed for ABC, Inc., et al. by David A. Schulz, Steven D. Zansberg, Richard A. Bernstein, Peter Scheer, Eve Burton, Jonathan Donnellan, Stephen J. Burns, Lucy A. Dalglish, Gregg P. Leslie, and Eric N. Lieberman; for the Pacific Legal Foundation et al. by Deborah J. La Fetra, Timothy Sandefur, Timothy Lynch, and Ilya Shapiro; and for Thomas Rybicki by Edward L. Larsen.