Lead Opinion
OPINION OF THE COURT
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delivered the opinion of the Court.
In 2001, Enrоn 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 Skill-ing of conspiracy to commit “honest-services” wire fraud, 18 U.S.C. §§ 371, 1343, 1346?
Answering no to both questions, the Fifth Circuit affirmed Skilling’s convictions. We conclude, in common with the Court of Appeals, that Skill-ing’s fair-trial argument fails;
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Skill-ing, we hold, did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. But we disagree with the Fifth Circuit’s honest-services ruling. In proscribing fraudulent deprivations of “the intangible right of honest services,” § 1346, Congress intended at least to reach schemes to defraud involving bribes and kickbacks. Construing the honest-services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that § 1346 covers only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within § 1346’s proscription. We therefore affirm in part and vacate in part.
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 Skill-ing’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.
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the corporation’s chain of command: On July 7, 2004, a grand jury indicted Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer.
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.
In November 2004, Skilling moved to transfer the trial to another venue; he contended that hostility toward him in Houston, couplеd 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
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the experts he engaged portraying community attitudes in Houston in comparison to other potential venues.
The U. S. District Court for the Southern District of Texas, in accord with rulings in two earlier instituted Enron-related prosecutions,
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 questionnaire’s
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format and content, Skilling and the Government submitted dueling documents. On venire members’ sources of Enron-related news, for example, the Government proposed that they tick boxes from a checklist of generic labels such as “television,” “[newspaper,” and “[r]adio,” Record 8415; Skill-ing proposed more probing questions asking venire members to list the specific names of their media sources and to report on “what st[ood] out in [their] mind[s]” of “all the things [they] ha[d] seen, heard or read about Enron,” id., at 8404-8405.
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.
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In November 2005, the District Court mailed the questionnaire to 400 prospective jurors and received responses from nearly all the addressees. The court granted hardship exemptions to approximately 90 individuals, id., at 11773-11774, and
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 inhеrent jury prejudice.” Id., at 14115. The questionnaires and voir dire, the court observed, provided
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safeguards adequate to ensure an impartial jury. Id., at 14115-14116.
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 Federal Rule of Criminal Procedure 24(b)(2) and (c)(4)(B). Id., at 13673-13675.
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,
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for individual examination. Although the questions varied, the process generally tracked the following format: The court asked about exposure to Enron-related news and the content of any stories that stood out in the prospective juror’s mind. Next, the court homed in on questionnaire answers that raised a red flag signaling possible bias. The court then permitted each side to pose followup questions. Finally, after the venire member stepped away, the court entertained and ruled on challenges for cause. In all, the court granted one of the Government’s for-cause challenges and denied four; it granted three of the defendants’ challenges and denied six. The parties agreed to excuse three additional jurors for cause and one for hardship.
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.
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several venire members after the court refused to excuse them for cause. Supp. App. 3sa-4sa (Sealed).
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 рresumption of juror prejudice. 554
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. . . [who] lost their jobs, and . . . saw their 401(k) accounts wiped out,” to Houstonians who suffered spillover economic effects. Id., at 559-560.
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,
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part, vacate in part, and remand for further proceedings.
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
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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 . . .
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have been committed.” Art. Ill, § 2, cl. 3. See also Amdt. 6 (right to trial by “jury of the State and district wherein the crime shall have been committed”). The Constitution’s place-of-trial prescriptions, however, do not impede transfer of the proceeding to a different district at the defendant’s request if extraordinary local prejudice will prevent a fair trial—a “basic requirement of due process,” In re Murchison,
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“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.,
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publicity attending conduct charged as criminal dim prospects that the trier can judge a case, as due process requires, impartially, unswayed by outside influence? Because most cases of consequence garner at least sоme pretrial publicity, courts have considered this question in diverse settings. We begin our discussion by addressing the pre
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,
We followed Rideau’s lead in two later cases in which media coverage manifestly tainted a criminal prosecution. In Estes v. Texas,
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before trial swelled into excessive exposure during preliminary court proceedings as reporters and television crews overran the courtroom and “bombard [ed] . . . the community with the sights and sounds of’ the pretrial hearing. The media’s overzealous reporting efforts, we observed, “led to considerable disruption” and denied the “judicial serenity and calm to which [Billie Sol Estes] was entitled.” Id., at 536,
Similarly, in Sheppard v. Maxwell,
In each of these cases, we overturned a “conviction obtained in a trial atmosphere that [was] utterly
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U.S. 1025,
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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 separate
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Skilling’s prosecution from those in which we have presumed juror prejudice.
First, we have emphasized in prior decisions the size and characteristics of the community in which the crime occurred. In Rideau, for ex
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 dramatically
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staged admission of guilt, for instance, was likely imprinted indelibly in the mind of anyone who watched it. Cf. Parker v. Randolph,
Third, unlike cases in which trial swiftly followed a widely reported crime, e.g., Rideau,
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.
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(CA5 1989) (“The jury’s ability to discern a failure of proof of guilt of some of the alleged crimes indicates a fair minded consideration of the issues and reinforces our belief and conclusion that the media coverage did not lead to the deprivation of [the] right to an impartial trial.”).
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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,
Nor did Enron’s “sheer number of victims,”
Finally, although Causey’s “well-publicized decision to plead guilty” shortly before trial created a danger of juror
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prejudice,
Persuaded that no presumption arose,
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.
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1
No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood,
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,
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,
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service. We consider the adequacy of jury selection in Skilling’s case, therefore, attentive to the respect due to district-court determina
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Skilling deems the voir dire insufficient because, he argues, jury selection lasted “just five hours,” “[m]ost of the court’s questions were conclu-sory[,] high-level, and failed adequately to probe jurоrs’ 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
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deleted). Our review of the record, however, yields a different appraisal.
As noted, supra, at 370-372,
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we note, District Courts, after inspecting
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,
Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skill-ing lists, the selection process successfully secured jurors who were largely untouched by Enron’s collapse.
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reported no connection at all to Enron, while all other jurors reported at most an insubstantial link. See, e.g., Supp. App. lOlsa (Juror 63) (“I once met a guy who worked for Enron. I cannot remember his
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two jurors indicated that nothing in the news influenced their opinions about Skilling.
The questionnaires confirmed that, whatever community prejudice existed in Houston generally, Skilling’s jurors were not under its sway.
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[would] prevent” their impartial consideration of the evidence at trial, every juror—despite options to mark “yes” or “unsure”—instead checked “no.”
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.
“[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 he 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
[561 U.S. 393 ]
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.
“[Njewspapers 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
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,
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the members admit, before hearing any testimony, to possessing a belief in his guilt.” Id., at 728,
In this case, as noted supra, at 382-383,
The District Court, moreover, did not simply take venire members who proclaimed their impartiality at their word.
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a verdict only on the evidence at trial. Nevertheless, the court followed up with each individually to uncover concealed bias. This face-to-face opportunity to gauge demeanor and credibility, coupled with information from the questionnaires regarding jurors’ backgrounds, opinions, and sources of news, gave the court a sturdy foundation to assess fitness for jury service. See
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Skilling also singles out several jurors in particular and contends they were openly biased. See United States v. Martinez-Salazar,
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require[s] reversal.”). In reviewing claims of this type, the deference due to district courts is at its pinnacle: “A trial court’s findings of juror impartiality may be overturned only for manifest error.” Mu’Min,
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,
“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,
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Court of Appeals that “[t]he express finding that
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,
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,
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court’s deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.”). From where we sit, we cannot conclude that Juror 63 was biased.
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 Skill-ing’s reasons for wanting to strike these four individuals from his jury,
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 verdict
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based on the evidence presented in court.” Irvin,
Ill
We next consider whether Skilling’s conspiracy conviction was premised on an improper theory of honest-services wire fraud. The honest-services statute, § 1346, Skilling maintains, is unconstitutionally vague. Alternatively, he contends that his conduct does not fall within the statute’s compass.
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To place Skilling’s constitutional challenge in context, we first review the origin and subsequent application of the honest-services doctrine.
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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,
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(emphasis added); see id., at 357-358,
In an opinion credited with first presenting the intangible-rights theory, Shushan v. United States, 117
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,
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“Most often these cases ... involved bribery of public officials,” United States v. Bohonus,
“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,
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
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official partially controlled.
We held that the scheme did not qualify as mail fraud. “Rather than сonstru[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,
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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,
“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.
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Congress, Skilling charges, reacted quickly but not clearly: He asserts that § 1346 is unconstitutionally vague. To satisfy due process, “a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory
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enforcement.” Kolender v. Lawson,
According to Skilling, § 1346 meets neither of the two due process essentials. First, the phrase “the intangible right of honest services,” he contends, does not adequately define what behavior it bars. Brief for Petitioner 38-39. Second, he alleges, § 1346’s “standardless sweep . . . allows policemen, prosecutors, and juries to pursue their personal predilections,” thereby “facilitat[ing] opportunistic and arbitrary prosecutions.” Id., at 44 (quoting Kolender,
In urging invalidation of § 1346, Skilling swims against our case law’s current, which requires us, if we
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We agree that § 1346 should be construed rather than invalidated. First, we look to the doctrine developed in pr e-McNally cases in an endeavor to ascertain the meaning of the phrase “the intangible right of honest services.” Second, to preserve what Congress certainly intended the statute to cover, we pare that body of precedent down to its core: In the main, the pr e-McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Confined to these paramount applications, § 1346 presents no vagueness problem.
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There is no doubt that Congress intended § 1346 to refer to and incorporate the honest-services doctrine recognized in Courts of Appeals’ decisions before McNally derailed the intangible-rights theory of fraud. See Brief for Petitioner 39; Brief for United States 37-38; post, at 416, 422,
“The definite article ‘the’ suggests that ‘intangible right of honest services’ had a specific meaning to Congress when it enacted the statute—Congress was recriminal-izing mail- and wire-fraud schemes*658 to deprive others
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of that ‘intangible right of honest services,’ which had been protected before McNally, not all intangible rights of honest services whatever they might be thought to be.” United States v. Rybicki,
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Satisfied that Congress, by enacting § 1346, “meant to reinstate the body of pre-McNally honest-services law,” post, at 422,
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,
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e.g., Hooper v. California,
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
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hodgepodge of oft-conflicting holdings” that are “hopelessly unclear.” Brief for Petitioner 39 (some capitalization and italics omitted). We have rejected an argument of the same tenor before. In Civil Service Comm’n v. Letter Carriers, federal employees challenged a provision of the Hatch Act that incorporated earlier decisions of the United States Civil Service Commission enforcing a similar law. “[T]he several thousand adjudications of the Civil Service Commission,” the employees maintained, were “an impenetrable jungle”—“undiscoverable, inconsistent, [and] incapable of yielding any meaningful rules to govern present or future conduct.”
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,
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360,
As already noted, supra, at 400-401,
In view of this history, there is no doubt that Congress intended § 1346 to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine.
[
statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.
3
The Government urges us to go
[
theory of liability in McNally itself was nondisclosure of a conflicting financial interest,” the Government observes, and “Congress clearly intended to revive th[at] nondisclosure theory.” Id., at 44. Moreover, “[although not as numerous as the bribery and kickback cases,” the Government asserts, “the pre-McNally cases involving undisclosed self-dealing were abundant.” Ibid.
Neither of these contentions withstands close inspection. McNally, as we have already observed, supra, at 401-402, 407,
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 non-disclosure and concealment of material information,” Mandel,
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,
[
812,
In sum, our construction of § 1346 “establish [es] a uniform national standard, define[s] honest services with clarity, reach [es] only seriously culpable conduct, and accomplish [es] Congress’s goal of ‘overruling’ McNally.” Brief for Albert W. Alschuler as Amicus Curiae in Weyhrauch v. United States, O. T. 2009, No. 08-1196, pp. 28-29. “If Congress desires to go further,” we reiterate, “it must speak more clearly than it has.” McNally,
[
4
Interpreted to encompass only bribery and kickback schemes, § 1346 is not unconstitutionally vague. Recall that the void-for-vagueness doctrine addresses concerns about (1) fair notice and (2) arbitrary and discriminatory prosecutions. See Kolender,
As to fair notice, “whatever the school of thought concerning the scope and meaning of ” § 1346, it has always been “as plain as a pikestaff that” bribes and kickbacks constitute honest-services fraud, Williams v. United States,
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 proscrib
[
treatment in connection with [enumerated circumstances].”).
C
It remains to determine whether Skilling’s conduct violated § 1346. Skilling’s honest-services prosecution, the Government concedes, was not “prototypical.” Brief for United States 49. The Government charged Skilling with conspiring to defraud Enron’s shareholders by misrepresenting the company’s fiscal health, thereby artificially inflating its stock price. It was the Government’s theory at trial that Skilling “profited from the fraudulent scheme . . . through the receipt of salary and bonuses, . . . and through the sale of approximately $200 million in Enron stock, which netted him $89 million.” Id., at 51.
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 § 1346, Skilling did not commit honest-services fraud.
[
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,
Whether potential reversal on the conspiracy count touches any of Skill-ing’s other convictions is also an open question. All of his convictions, Skill-ing 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 сourt 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.
SEPARATE OPINIONS
Notes
. The mail- and wire-fraud statutes criminalize the use of the mails or wires in furtherance of “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.’’ 18 U.S.C. § 1341 (mail fraud); § 1343 (wire fraud). The honest-services statute, § 1346, defines “the term ‘scheme or artifice to defraud’ ’’ in these provisions to include “a scheme or artifice to deprive another of the intangible right of honest services.’’
. See United States v. Fastow,
. Painting a different picture of the media coverage surrounding Enron’s collapse, Justice Sotomayor’s opinion relies heavily on affidavits of media experts and jury consultants submitted by Skilling in support of his venue-transfer motion. E.g., post, at 428, 429-430, 431, 177 L. Ed.
. Questions included the following: “What are your opinions about the compensation that executives of large corporations receive?”; “Have you, any family members, or friends ever worked for or applied for work with,” “done business with,” or “owned stock in Enron Corporation or any Enron subsidiaries and partnership?”; “Do you know anyone . . . who has been negatively affected or hurt in any way by what happened at Enron?”; “Do you have an opinion about the cause of the collapse of Enron? If YES, what is your opinion? On what do you base your opinion?”; “Have you heard or read about any of the Enron cases? If YES, please tell us the name of all sources from which you have heard or read about the Enron cases.”; “Have you read any books or seen any movies about Enron? If YES, please describe.”; “Are you angry about what happened with Enron? If YES, please explain.”; “Do you have an opinion about . . . Jeffrey Skilling ...[?] If YES, what is your opinion? On what do you base your opinion?”; “Based on anything you have heard, read, or been told[,] do you have any opinion about the guilt or innocence of. . . Jeffrey Skilling[?] If. . . YES . . . , please explain.”; “[W]ould any opinion you may have formed regarding Enron or any of the defendants prevent you from impartially considering the evidence presented during the trial of. . . Jeffrey Skilling[?] If YES or UNSURE . . . , please explain.”; “Is there anything else you feel is important for the court to know about you?” Record 13013-13026.
. Among other questions, the court asked whether sympathy toward the victims of Enron’s collapse or a desire to see justice done would overpower prospective jurors’ impartiality. App. 839a-840a.
. Selection procedures of similar style and duration took place in three Enron-related criminal cases earlier prosecuted in Houston—United States v. Arthur Andersen LLP, No. 4:02-cr-00121-1 (SD Tex.) (charges against Enron’s outside accountants); United States v. Bayly, No. 4:03-cr-00363 (SD Tex.) (charges against Merrill Lynch and Enrоn executives for alleged sham sales of Nigerian barges); United States v. Hirko, No. 4:03-cr-00093 (SD Tex.) (fraud and insider-trading charges against five Enron Broadband Services executives). See Brief for United States 9 (In all three cases, the District Court “distributed a jury questionnaire to a pool of several hundred potential jurors; dismissed individuals whose responses to the questionnaire demonstrated bias or other disqualifying characteristics; and, after further questioning by the court and counsel, selected a jury from the remaining venire in one day.’’); Government’s Memorandum of Law in Response to Defendants’ Joint Motion to Transfer Venue in United States v. Skilling, No. 4:04-cr-00025 (SD Tex., Dec. 3, 2004), Record, Doc. 231, pp. 21-28 (describing in depth the jury-selection process in the Arthur Andersen and Bayly trials).
. Skilling had requested an additional peremptory strike each time the District Court rejected a for-cause objection. The court, which had already granted two extra peremptories, see supra, at 373,
. The Fifth Circuit described the media coverage as follows:
“Local newspapers ran many personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron. . . . Even the [Houston] Chronicles sports page wrote of Skilling’s guilt as a foregone conclusion. Similarly, the Chronicle's ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’ These are but a few examples of the Chronicle's coverage.’’554 F.3d, at 559 (footnote omitted).
. We also granted certiorari and heard arguments this Term in two other cases raising questions concerning the honest-services statute’s scope. See Black v. United States, No. 08-876; Weyhrauch v. United States, No. 08-1196. Today we vacate and remand those decisions in light of this opinion. Black, post, p. 465,
. Assuming, as the Fifth Circuit found, that a presumption of prejudice arose in Houston, the question presented in Skilling’s petition for certiorari casts his actual-prejudice argument as an inquiry into when, if ever, that presumption may be rebutted. See Pet. for Cert. i. Although we find a presumption of prejudice unwarranted in this case, we consider the actual-prejudice issue to be fairly subsumed within the question we agreed to decide. See this Court’s Rule 14.1(a).
. Venue transfer in federal court is governed by Federal Rule of Criminal Procedure 21, which instructs that a “court must transfer the proceeding ... to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.’’ As the language of the Rule suggests, district-court calls on the necessity of transfer are granted a healthy measure of appellate-court respect. See Platt v. Minnesota Mining & Mfg. Co.,
. Murphy involved the robbery prosecution of the notorious Jack Murphy, a convicted murderer who helped mastermind the 1964 heist of the Star of India sapphire from New York’s American Museum of Natural History. Pointing to “extensive press coverage’’ about him, Murphy moved to transfer venue.
. In Yount, the media reported on Jon Yount’s confession to a brutal murder and his prior conviction for the crime, which had been reversed due to a violation of Miranda v. Arizona,
. Skilling’s reliance on Estes and Sheppard is particularly misplaced; those cases involved media interference with courtroom proceedings during trial. See supra, at 379-380,
. According to a survey commissioned by Skilling in conjunction with his first motion for a venue change, only 12.3% of Houstonians named him when asked to list Enron executives they believed guilty of crimes. App. 375a-376a. In response to the followup question “[w]hat words come to mind when you hear the name Jeff Skilling?”, two-thirds of respondents failed to say a single negative word, id., at 376a: 43% either had never heard of Skilling or stated that nothing came to mind when they heard his name, and another 23% knew Skilling’s name was associated with Enron but reported no opinion about him, Record 3210-3211; see App. 417a-492a.
. As the United States summarizes, “[l]n Hirko, the jury deliberated for several days and did not convict any Enron defendant; in Bayly, which was routinely described as ‘the first Enron criminal trial,’ the jury convicted five defendants, . . . but acquitted a former Enron executive. At
. The Fifth Circuit, moreover, did not separate media attention aimed at Skilling from that devoted to Enron’s downfall more generally. Data submitted by Skilling in support of his first motion for a venue transfer suggested that a slim percentage of Enron-related stories specifically named him. App. 572a. “[W]hen publicity is about the event, rather than directed at individual defendants, this may lessen any prejudicial impact.” United States v. Hueftle,
. The parties disagree about whether a presumption of prejudice can be rebutted, and, if it can, what standard of proof governs that issue. Compare Brief for Petitioner 25-35 with Brief for
. The dissent acknowledges 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.’’ Post, at 445,
. The dissent recognizes “the “wide discretion’ owed to trial courts when it comes to jury-related issues,’’ post, at 447,
. In addition to focusing on the adequacy of voir dire, our decisions have also “take[n] into account . . . other measures [that] were used to mitigate the adverse effects of publicity.’’ Nebraska Press Assn. v. Stuart,
. The dissent’s analysis undervalues the 77-item questionnaire, a part of the selection process difficult to portray as “cursory,” post, at 455,
. One of the earlier prosecutions targeted the “Big Five’’ public accounting firm Arthur Andersen. See supra, at 374, n. 6,
. In considering whether Skilling was tried before an impartial jury, the dissent relies extensively on venire members not selected for that jury. See, e.g., post, at 432, n. 4,
. See also Supp. App. 11sa (Juror 10) (“knew some casual co-workers that owned Enron stock’’); id., at 26sa (Juror 11) (“work[s] with someone who worked at Enron’’); id., at 117sa; App. 940a (Juror 64) (two acquaintances lost money due to Enron’s collapse); Supp. App. 236sa (Juror 116) (work colleague lost money as a result of Enron’s bankruptcy).
. See also App. 850a (Juror 10) (“I haven’t followed [Enron-related news] in detail or to any extreme at all.’’); id., at 856a (Juror 11) (did not “get into the details of [the Enron case]’’ and “just kind of tune[d] [it] out’’); id., at 873a (Juror 20) (“I was out of [the] state when [Enron collapsed], and then personal circumstances kept me from paying much attention.’’); id., at 892a (Juror 38) (recalled “nothing in particular’’ about media coverage); id., at 913a (Juror 50) (“I would hear it on the news and just let it filter in and out.’’); id., at 935a (Juror 63) (“I don’t really pay attention.’’); id., at 940a-941a (Juror 64) (had “[n]ot really’’ been keeping up with and did not recall any news about Enron); id., at 971a (Juror 84) (had not read “anything at all about Enron’’ because he did not “want to read that stuff’ (internal quotation marks omitted)); id., at 983a (Juror 90) (“seldom” read the Houston Chronicle and did not watch news programs); id., at 995a-996a (Juror 99) (did not read newspapers or watch the news; “I don’t know the details on what [this case] is or what made it what it is”); id., at 1010a (Juror 113) (“never really paid that much attention [to] it”); id., at 1013a (Juror 116) (had “rea[d] a number of different articles,” but “since it hasn’t affected me personally,” could not “specifically recall” any of them).
. Id., at 944a (Juror 67) (had not read the Houston Chronicle in the three months preceding the trial and volunteered: “I don’t form an opinion based on what ... I hear on the news”); id., at 974a-975a (Juror 87) (had not “formed any opinions” about Skilling’s guilt from news stories).
. As the D. C. Circuit observed, reviewing the impact on jurors of media coverage of the Watergate scandal, “[t]his may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.” United States v. Haldeman,
. One juror did not check any box, explaining that she lived in another State when Enron went bankrupt and therefore “was not fully aware of all the facts regarding Enron’s fall [and] the media coverage.” Supp. App. 62sa (Juror 20). Two other jurors, Juror 10 and Juror 63, indicated in answer to a different question that they had an opinion about Skilling’s guilt, but voir dire established they could be impartial. See infra, at 397-398, and 398, n. 33,
. The court viewed with skepticism, for example, Venire Member 104’s promises that she could “abide by law,’’ follow the court’s instructions, and find Skilling not guilty if the Government did not prove its case, App. 1004a; “I have to gauge . . . demeanor, all the answers she gave me,’’ the court stated, and “[s]he persuaded me that she could not be fair and impartial, so she’s excused,’’ id., at 1006a.
. Skilling emphasizes that voir dire did not weed out every juror who suffered from Enron’s collapse because the District Court failed to grant his for-cause challenge to Venire Member 29, whose retirement fund lost $50,000 due to ripple effects from the decline in the value of Enron stock. App. 880a. Critically, however, Venire Member 29 did not sit on Skilling’s jury: Instead, Skilling struck her using a peremptory challenge. “[I]f [a] defendant elects to cure [a trial judge’s erroneous for-cause ruling] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat,” we have held, “he has not been deprived of any . . . constitutional right.” United States v. Martinez-Salazar,
. Skilling’s trial counsel and jury consultants apparently did not regard Juror 11 as so “obvious[ly] bias[ed],” Brief for Petitioner 35, as to warrant exercise of a peremptory challenge.
. Although Skilling raised no objection to Juror 10 and Juror 87 at trial, his briefs in this Court impugn their impartiality. Brief for Petitioner 14-15; Reply Brief 13. Even if we allowed these tardy pleas, the voir dire testimony of the two jurors gives sufficient assurance that they were unbiased. See, e.g., App. 850a-853a (Juror 10) (did not prejudge Skilling’s guilt, indicated he could follow the court’s instructions and make the Government prove its case, stated he could be fair to Skilling, and said he would “judge on the facts’’); id., at 974a (Juror 87) (had “not formed an opinion’’ on whether Skilling was guilty and affirmed she could adhere to the presumption of innocence).
. Our decisions have rightly set a high bar for allegations of juror prejudice due to pretrial publicity. See, e.g., Mu’Min,
. In addition to upholding honest-services prosecutions, courts also increasingly approved use of the mail-fraud statute to attack corruption that deprived victims of other kinds of intangible rights, including election fraud and privacy violations. See, e.g., Cleveland v. United States, 531
. Courts have disagreed about whether § 1346 prosecutions must be based on a violation of state law, compare, e.g., United States v. Brumley,
. See, e.g., United States v. Rybicki,
. Although verbal formulations varied slightly, the words employed by the Courts of Appeals prior to McNally described the same concept: “honest services,’’ e.g., United States v. Bruno,
. We considered a similar Court-Congress interplay in McDermott Int’l, Inc. v. Wilander,
. “This cardinal principle has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy,
. Justice Scalia emphasizes divisions in the Courts of Appeals regarding the source and scope of fiduciary duties. Post, at 417-419,
. Apprised that a broader reading of § 1346 could render the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at bribery and kickback schemes. Cf. Levin v. Commerce Energy, Inc.,
. Justice Scalia charges that our construction of § 1346 is “not interpretation but invention.” Post, at 422,
. If Congress were to take up the enterprise of criminalizing “undisclosed self-dealing by a public official or private employee,’’ Brief for United States 43, it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the ‘taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty,’’ so long as the employee acts with a specific intent to deceive and the undisclosed conduct could influence the victim to change its behavior. Id., at 43-44. See also id., at 40-41. That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made, and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohibition in this context.
. Overlap with other federal statutes does not render § 1346 superfluous. The principal federal bribery statute, § 201, for example, generally applies only to federal public officials, so § 1346’s application to state and local corruption and to private-sector fraud reaches misconduct that might otherwise go unpunished.
. The Fifth Circuit appeared to prejudge this issue, noting that, “if any of the three objects of Skilling’s conspiracy offers a legally insufficient theory,’’ it “must set aside his conviction.’’
Concurrence Opinion
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 18 U.S.C. § 1346 (2006 ed.) that “scheme or artifice to defraud” in the mail-fraud and wire-fraud statutes, §§ 1341 and 1343 (2006 ed., Supp. II), includes “a scheme or artifice to deprive another of the intangible right of honest services” is vague, and therefore violates the Due Process Clause of the Fifth Amendment. The Court strikes a pose of judicial humility in proclaiming that our task is “not to destroy the Act . . . but to construe it,” ante, at 407,
I
A criminal statute must clearly define the conduct it proscribes, see Grayned v. City of Rockford,
[
Jersey,
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,
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.
[
they do not. Not at all. Nor did McNally even provide a consistent definition of the pre-existing theory of fraud it rejected. It referred variously to a right of citizens “to have the [State]'s affairs conducted honestly,” id., at 353,
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,
There was not even universal agreement concerning the source of the fiduciary obligation—whether it must bе positive state or federal law, see, e.g., United States v. Rabbitt,
[
at 1294, a corpus juris festooned with various duties. See, e.g., Restatement (Second) of Trusts §§ 169-185 (1976). Another pre-McNally case referred to the general law of agency, United States v. Ballard,
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,
[
for public officials than for private employees, see, e.g., Lemire, supra, at 1337, n. 13; Ballard, supra, at 541, n. 17, but in what respects (or by how much) was never made clear.
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,
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,
[
rejected, see, e.g., United States v. Newman,
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,
II
The Court is aware of all this. It knows that adopting by reference “the
[
the referring term itself (“the intangible right of honest services”). Hence the deus ex machina: “[W]e pare that body of precedent down to its core,” ante, at 404,
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
[
honest-services fraud, not one is limited to bribery and kickbacks. That is a dish the Court has cooked up all on its own.
Thus, the Court’s claim to “respec[t] the legislature,” ante, at 409, n. 43,
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
[
To do that, our cases have been careful to note, the narrowing construction must be “fairly possible,” Boos v. Barry,
The canon of constitutional avoidance, on which the Court so heavily relies, see ante, at 405-406,
I certainly agree with the Court that we must, “if we can,” uphold, rather than “condemn,” Congress’s enactments, ante, at 403,
[
right with the stroke of our
Ill
A brief word about the appropriate remedy. As I noted supra, at 416,
I would therefore reverse Skilling’s conviction under § 1346 on the ground that it fails to define the conduct it prohibits. The fate of the statute in future prosecutions—obvious from my reasoning in the case—would be a matter for stare decisis.
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,
[561 U.S. 425 ]
“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.”
. The Court is untroubled by these divisions because “these debates were rare in bribe and kickback cases,’’ in which “[t]he existence of a fiduciary relationship, under any definition of that term, was usually beyond dispute,’’ ante, at 407, n. 41,
. Courts since § 1346’s enactment have fared no better, reproducing some of the same disputes that predated McNally. See, e.g., Sorich v. United States,
. The only alleged precedent the Court dares to describe is Civil Service Comm’n v. Letter Carriers,
Concurrence Opinion
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 Sixth Amendment guarantees criminal defendants a trial before “an impartial jury.” In my view, this requirement is satisfied so long as no biased juror is actually seated at trial. Of course, evidence of pretrial media attention and widespread community hostility may play a role in the bias
[
Illinois,
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 Sixth Amendment requires is “an impartial jury.” If the jury that sits and returns a verdict is impartial, a defendant has received what the Sixth Amendment requires.
The rule that petitioner advances departs from the text of the Sixth Amendment and is difficult to apply. It requires a trial judge to determine whether the adverse pretrial media coverage and community hostility in a particular case have reached a certain level of severity, but there is no clear way of demarcating that level or of determining whether it has been met.
Petitioner relies chiefly on three cases from the 1960’s—Sheppard v. Maxwell,
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
[
458-462,
Because petitioner, in my view, is not entitled to a rеversal of the decision below on the jury-trial question that is before us, I join the judgment of the Court in full.
Concurrence Opinion
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 onetime 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.
[
I
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
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
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Local television news coverage was similarly pervasive and, in terms of “editorial theme,” “largely followed the Chroniсle’s lead.” Id., ¶ 11, at 559a; see also id.., at 717a. Between May 2002 and October 2004, local stations aired an estimated 19,000 news segments involving Enron, more than 1,600 of which mentioned Skilling. 3 Supp. Record 2116.
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 Skill-ing’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 Skill-ing 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
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585a-586a. The conventional wisdom that blame for Enron’s devastating implosion and the ensuing human tragedy ultimately rested with Skill-ing and former Enron Chairman Kenneth Lay became so deeply ingrained in the popular imagination that references to their involvement even turned up on the sports pages: “If you believe the story about [Coach Bill Parcells] not having anything to do with the end of Emmitt Smith’s Cowboys career, then you probably believe in other far-fetched concepts. Like Jeff Skilling having nothing to do with Enron’s collapse.” 3 Supp. Record 811.
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 Skill-ing’s attempts to paint himself as “a ‘victim’ of his subordinates,” id., at 1394a, the Chronicle derided “the doo-fus defense” that Lay and Skilling
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finally bring “the true measure of justice in the Enron saga.” Record 40002; App. 1457a, 1460a.
Citing the widely felt sense of vic-timhood among Houstonians and the voluminous adverse publicity, Skill-ing moved in November 2004 for a change of venue.
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 Hous-tonians toward Skilling and his codefendants. More than one-third of the prospective jurors (approximately 99 of 283, by my count) indicated that they
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or persons they knew had lost money or jobs as a result of the Enron bankruptcy. Two-thirds of the jurors (about 188 of 283) expressed views about Enron or the defendants that suggested a potential predisposition to convict. In many instances, they did not mince words, describing Skilling as “smug,” “arrogant,” “brash,” “conceited,” “greedy,” “deceitful,” “totally unethical and criminal,” “a crook,” “the biggest liar on the face of the earth,” and “guilty as sin” (capitalization omitted).
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Of 119 members of the jury pool for cause, hardship, or disability, but numerous individuals who had made harsh comments about Skilling remained.
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
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pleas were the result of prosecutorial pressure rather than actual wrongdoing.” Id., at 12391.
With the trial date quickly approaching, Skilling renewed his change-of-venue motion, arguing that
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.
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The coming trial featured prominently in local news outlets. A front-рage, eve-of-trial story in the Chronicle described “the hurt and anger and resentment” that had been “churn [ing] inside” Houstonians since Enron’s collapse. Id., at 39946. Again criticizing Lay and Skilling for offering a “doofus defense” (“a plea of not guilty by reason of empty-headedness”), the paper stated that “Lay and Skilling took hundreds of millions in compensation yet now fail to accept the responsibility that went with it.” Ibid. The article allowed that the defendants’ guilt, “though perhaps widely assumed, remains even now an assertion. Ajury now takes up the task of deciding whether that assertion is valid.” Id., at 39947. The next paragraph, however, assured readers that “it’s normal for your skin to crawl when Lay or Skilling claim with doe-eyed innocence that they were unaware that something was amiss at Enron. The company’s utter failure belies the claim.” Ibid, (one paragraph break omitted); see also id., at 39904 (declaring that Lay and Skilling would “have to offer a convincing explanation for how executives once touted as corporate geniuses could be so much in the dark about the illegal activities and deceptive finances of their own company”).
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.”
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to the bench. One told the court that he thought Lay and Skilling “knew exactly what they were doing” and would have to prove their innocence. Id., at 818a-819a. The second juror, who had stated on his written questionnaire that he held no opinion that would preclude him from being impartial, declared that he “would dearly love to sit on this jury. I would love to claim responsibility, at least 1/12 of the responsibility, for putting these sons of bitches away for the rest of their lives.” Id., at 819a-820a. The court excused both jurors for cause.
The court proceeded to question individual jurors from the bench. As the majority recounts, ante, at 373-374,
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Once it identified 38 qualified prospective jurors, the court allowed the defense and Government to exercise their allotted peremptory challenges. This left 12 jurors and 4 alternates, who were sworn in and instructed, for the first time, “not [to] read anything dealing with this case or listen to any discussion of the case on radio or television or access any Internet sites that mаy deal with the case” and to “inform your friends and family members that they should not discuss with you anything they may have read or heard about this case.” Id., at 1026a. Start to finish, the selection process took about five hours.
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
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prejudice came from more than just pretrial media publicity, but also from the sheer number of victims.” Ibid.
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 Sixth Amendment right to an impartial jury and the due process right to a fundamentally fair trial guarantee to criminal defendants a trial in which jurors set aside preconceptions, disregard extrajudicial influences, and decide guilt or innocence “based on the evidence presented in court.” Irvin v. Dowd,
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.
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This Court has never treated the notion of presumptive prejudice so formalistically. Our decisions instead merely convey the commonsense understanding that as the tide of public enmity rises, so too does the danger that the prejudices of the community will infiltrate the jury. The underlying
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,
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,
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of Rideau is that the Court there recognized that prejudicial publicity may be so inflammatory and so pervasive that the voir dire simply cannot be trusted to fully reveal the likely prejudice among prospective jurors”).
As the majority describes, ante, at 379-380,
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] influenced”
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by the fervor that surrounds them. Murphy,
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.
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,
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and convincing.” Id., at 725,
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.
The first of these cases, Murphy,
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some knowledge of [his] past crimes,” “none betrayed any belief in the relevance of [Murphy’s] past to the present case.” Ibid.; see also ibid., n. 4 (contrasting a juror’s “mere familiarity with [a defendant] or his past” with “an actual predisposition against him”). “[T]hese indicia of impartiality,” the Court suggested, “might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory, but the circumstances surrounding [Murphy’s] trial [were] not at all of that variety.” Id., at 802,
In a second case, Yount,
This Court most recently wrestled with the issue of pretrial publicity in Mu’Min v. Virginia,
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Mu’Min stood accused of murdering a woman while out of prison on a work detail. Citing 47 newspaper articles about the crime, Mu’Min moved for a change of venue. The state trial court deferred its ruling and attempted to seat a jury. During group questioning, 16 of the 26 prospective jurors indicated that they had heard about the case from media or other sources. Dividing these prospective jurors into panels of four, the court asked further general questions about their ability to be fair given what they had heard or read. One juror answered equivocally and was dismissed for cause. The court refused Mu’Min’s request to ask more specific questions “relating to the content of news items that potential jurors might have read or seen.” Id., at 419,
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.”
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engendered by pretrial publicity that occurred in connection with Irvin’s trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here.” Id., at 429,
Ill
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
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,
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would not necessarily have formed an indelible impression that Skilling himself was guilty as charged. Cf. Rideau,
In concluding that the voir dire “adequately detected] and defuse[d] juror bias,” ante, at 385,
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extent of the community’s antipathy toward Skilling and exaggerates the rigor of the jury selection process. The devastating impact of Enron’s collapse and the relentless media coverage demanded exceptional care on the part of the District Court to ensure the seating of an impartial jury. While the procedures employed by the District Court might have been adequate in the typical high-profile case, they did not suffice in the extraordinary circumstances of this case to safeguard Skilling’s constitutional right to a fair trial before an impartial jury.
In conducting this analysis, I am mindful of the “wide discretion” owed to trial courts when it comes to jury-related issues. Mu’Min,
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1
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.
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,
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,
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Enron’s declaration of bankruptcy and the start of Skilling’s trial, asserting that “the decibel level of media attention diminished somewhat” over this time. Ante, at 383,
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.
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Second, the passage of time did little to soften community sentiment. Contrary to the Court’s suggestion, ante, at 383,
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of the jury pool, each highly publicized Enron-related guilty plea or conviction likely served to increase their certainty that Skill-ing too had engaged in—if not masterminded—criminal acts, particularly given that the media coverage reinforced this view. See supra, at 433-434,
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,
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2
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,
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As an initial matter, important lines of inquiry were not pursued at all. The majority accepts, for instance, that “publicity about a codefendant’s guilty plea calls for inquiry to guard against actual prejudice.” Ante, at 385,
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
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about the substance of these interactions. Surely many prospective jurors had similar conversations, particularly once they learned upon receiving the written questionnaire that they might end up on Skilling’s jury.
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.
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at 843a. It is thus not apparent whether other prospective jurors also overheard the information and whether they too believed that it reflected unfavorably on the defen
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.
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jurors were more forthcoming, their responses tended to highlight the ubiquity and negative tone of the local news coverage, thus underscoring the need to press the more guarded members of the venire for further information.
These deficiencies in the form and content of the voir dire questions con
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their word when they promised to be fair. Indeed, the court declined to dismiss for cause any prospective juror who ultimately gave a clear assurance of impartiality, no matter how much equivocation preceded it. Juror 29, for instance, wrote on her questionnaire that Skilling was “not an honest man.” App. 881a. During questioning, she acknowledged having previously thought the defendants were guilty, and she disclosed that she lost $50,000-$60,000 in her 401(k) as a result of Enron’s collapse. Id., at 880a, 883a. But she ultimately agreed that she would be able to presume innocence. Id., at 881a, 884a. Noting that she “blame[d] Enron for the loss of her money” and appeared to have “unshakeable bias,” Skilling’s counsel challenged her for cause. Id., at 885a. The court, however, declined to remove her, stating that “she answered candidly she’s going to have an open mind now” and “agree [ing]” with the Government’s assertion that “we have to take her at her word .’’Id., at 885a-886a.
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that he is equal to th[e] task cannot be dispositive of the accused’s rights”); Irvin,
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
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
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news.” Ante, at 390-391,
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Indeed, the District Court’s anemic questioning did little to dispel similar doubts about the impartiality of numerous other seated jurors and alternates. In my estimation, more than half of those seated made written and oral comments suggesting active antipathy toward the defendants. The majority thus misses the mark when it asserts that “Skilling’s seated ju
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
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problem” requiring the Government to prove its case, but he also told the court that he believed Lay was “greedy” and that corporate executives are often “stretching the legal limits .... I’m not going to say that they’re all crooks, but, you know.” App. 857a, 854a. Asked whether he would “star[t] the case with sort of an inkling that because [Lay is] greedy he must have done something illegal,” he offered an indeterminate “not necessarily.” Id., at 857.
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While several seated jurors and alternates did not make specific com
In assessing the likelihood that bias lurked in the minds of at least some of these seated jurors, I find telling the way in
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which voir dire played out. When the District Court asked the prospective jurors as a group whether they had any reservations about their ability to presume innocence and put the Government to its proof, only two answered in the affirmative, and both were excused for cause. Id., at 815a-820a. The District Court’s individual questioning, though truncated, exposed disqualifying prejudices among numerous additional prospective jurors who had earlier expressed no concerns about their impartiality. See n. 7, supra. It thus strikes me as highly likely that at least some of the seated jurors, despite stating that they could be fair, harbored similar biases that a more probing inquiry would likely have exposed. Cf. Yount,
The majority suggests, ante, at 383-384, 395,
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in those who are affected by it. The prejudice that may deny a fair trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evi-dentiary facts resulting from an attribution to something not included in the evidence. That something has its most powerful effect if it generates strong emotional responses”). In this regard, it is significant that the Government placed relatively little emphasis on the nine insider trading counts during its closing argument, declining to explain its theory on those counts in any detail whatsoever. Record 37010. The acquittals on those counts thus provide scant basis for inferring a lack of prejudice.
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,
. See also App. 735a (describing Enron as “hardball fraud’’ and noting that “Enron prosecutors have approached the case more like an organized crime investigation than a corporate fraud prosecution,’’ a “tactic [that] makes sense’’ given “the sheer pervasiveness of fraud, corruption and self-dealing’’); id., at 1403a (“Lay stood proudly in front of Enron’s facade of success, while Skilling and his own prot[ege], [Andrew] Fastow, ginned up increasingly convoluted mechanisms for concealing the financial reality. ... A court will decide the particulars, but yes, Ken Lay knew’’); id., at 1406a, 1409a (describing Enron’s collapse as “failure as a result of fraud’’ and criticizing Skilling for using “vitriol [as] a smokescreen’’ and “bolting for the door’’ just before Enron’s stock price plummeted); 3 Supp. Record 1711 (discussing the role of Skilling and Lay in “the granddaddy of all corporate frauds’’).
. According to Skilling’s media expert, local television stations “adopted these same themes’’ and “dr[o]ve them home through such vivid and repeated visual imagery as replaying footage of Skilling’s . . . ‘perp walk’when details about Skilling’s upcoming trial [we]re discussed.’’App. ¶65, at 584a. During arraignment, news outlets “followed each man as he drove from his home to FBI headquarters, to the court, and back home, often providing ‘color’ commentary—such as interviewing former Enron employees for comment on the day’s events.’’ Id., ¶60, at 581a.
. Reporting on the change-of-venue motion, the Chronicle described Skilling as a “desperate defendant,’’ and the Austin American-Statesman opined that while a change of venue may make sense “[f]rom a legal perspective,’’ “from the standpoint of pure justice, the wealthy executives really should be judged right where their economic hurricane struck with the most force.’’ Id., at 748a, 747a.
. See, e.g., Juror 1 (“Ken Lay and the others are guilty as all get out and ought to go to jail”; Skilling is “[b]rash, [a]rrogant [and] [c]onceited”; “I find it morally awful that these people are still running loose”); Juror 70 (“Mr. Skilling is the biggest liar on the face of the earth”); Juror 163
. Another 20 percent (about 59 of 283) indicated that they read the Chronicle or had otherwise heard about the Enron cases but did not report that they were victims or make comments suggesting possible bias against the defendants.
. See, e.g., Juror 29 (Skilling is “[n]ot an honest man’’); Juror 104 (Skilling “knows more than he’s admitting’’); Juror 211 (“I believe he was involved in wrong doings’’); Juror 219 (“So many people lost their life savings because of the dishonesty of some members of the executive team’’; Skilling was “[t]oo aggressive w[ith] accounting’’); Juror 234 (“With his level of control and power, hard to believe that he was unaware and not responsible in some way’’); Juror 240 (Skilling “[s]eems to be very much involved in criminal goings on’’); Juror 255 (“[T]housands of people were taken advantage of by executives at Enron’’; Skilling is “arrogant”; “Skilling was Andrew Fastow’s immediate superior. Fastow has plead[ed] guilty to felony charges. I believe Skilling was aware of Fastow’s illegal behavior”); Juror 263 (“Nice try resigning 6 months before the collaps[e], but again, he had to know what was going on”); Juror 272 (Skilling “[k]new he was getting out before the [d]am [b]roke”); Juror 292 (Skilling “[b]ailed out when he knew Enron was going down”); Juror 315 (“[H]ow could they not know and they seem to be lying about some things”); Juror 328 (“They should be held responsible as officers of this company for what happened”); Juror 350 (“I believe he greatly misused his power and affected hundreds of lives as a result”; “I believe they are all guilty. Their ‘doings’ affected not only those employed by Enrоn but many others as well”); Juror 360 (“I seem to remember him trying to claim to have mental or emotional issues that would remove him from any guilt. I think that is deceitful. It seems as though he is a big player in the downfall”); Juror 378 (“I believe he knew, and certainly should have known as the CEO, that illegal and improper [activities] were rampant in Enron”; “I believe all of them were instrumental, and were co-conspirators, in the massive fraud perpetrated at Enron”). Skilling’s Renewed Venue Motion.
. See App. 894a (Juror 43) (expressed the view that the defendants “stole money’’ from their employees); id., at 922a (Juror 55) (admitted that she “lean[ed] towards prejudging’’ the defendants); id., at 946a (Juror 71) (stated that she would place the burden of proof on the defendants); id., at 954a-960a (Juror 75) (indicated that she could not set aside her view that there was fraud at Enron); id., at 1003a-1006a (Juror 104) (stated that she questioned the defendants’ innocence and that she “would be very upset with the government if they could not prove their case’’); id., at 1008a (Juror 112) (expressed that the view that the defendants were guilty).
. Of course, even if the jury selection process is adequate, a trial court violates a defendant’s right to an impartial jury if it erroneously denies a for-cause challenge to a biased venire member who ultimately sits on the jury. See, e.g., United States v. Martinez-Salazar,
. Whether the District Court abused its discretion in declining to change venue pursuant to the Federal Rules of Criminal Procedure is a different question. See Fed. Rule Crim. Proc. 21(a) (“Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there’’). As this Court has indicated, its supervisory powers confer “more latitude’’ to set standards for the conduct of trials in federal courts than in state courts. Mu’Min v. Virginia,
. One of Skilling’s experts noted that, “[i]n cases involving 200 or more articles, trial judges granted a change of venue 59% of the time.” App. ¶30, at 611a.
. See, e.g.,
. Among the highlights: In 2002, Skilling testified before Congress, and other Enron exeсutives invoked their Fifth Amendment rights; Enron auditor Arthur Andersen was indicted, tried, convicted, and sentenced on charges of obstruction of justice; the Enron Task Force charged Enron chief financial officer and Skilling-protege Andrew Fastow with fraud, money laundering, and other crimes; and at least two Enron employees pleaded guilty on fraud and tax charges. In 2003, the Enron Task Force indicted numerous Enron employees, including Ben Clisan, Jr. (the company’s treasurer), Lea Fastow (wife of Andrew and an assistant treasurer), and more than half a dozen executives of Enron Broadband Services; several Enron employees entered guilty pleas and received prison sentences; and Enron filed its bankruptcy reorganization plan. In 2004, Andrew and Lea Fastow both pleaded guilty; Skilling and Causey were indicted in February; a superseding indictment adding Lay was filed in July; a number of additional Enron employees entered guilty pleas; and former Enron employees and Merrill Lynch bankers were defendants in a 6-week trial in Houston concerning an Enron deal involving the sale of Nigerian barges. In 2005, a 3-month trial was held in Houston for five executives of Enron Broadband Services; various pretrial proceedings occurred in the runup to the trial of Skilling, Lay, and Causey; and, three weeks before the scheduled trial date, Causey pleaded guilty to securities fraud.
. The majority points out that the jury selection processes in the three previous Enron trials that had been held in Houston were similarly brief. See ante, at 388-389,
Moreover, in referencing the length of the voir dire in this case, I do not mean to suggest that length should be a principal measure of the adequacy of a jury selection process. Trial courts, including this one, should be commended for striving to be efficient, but they must always take care to ensure that their expeditiousness does not compromise a defendant’s fair-trial right. I also express no view with respect to court-led versus attorney-led voir dire. Federal Rule of Criminal Procedure 24(a) gives district courts discretion to choose between these options, and I have no doubt that either is capable of producing an impartial jury even in high-profile cases so long as the trial court ensures that the scope of the voir dire is tailored to the circumstances.
. Juror 33 brought up the plea in response to the District Court’s question about whether he “recall[ed] listening to any particular programs about the case.” App. 888a. Juror 96, meanwhile, told the court that he read the “whole” Houston Chronicle every day, including “all the articles about Enron.” Id., at 992a. The court, however, did not ask any questions designed to elicit
. Portions of the voir dire transcript erroneously refer to this prospective juror as “Juror 110.’’ See, e.g., id., at 996a.
. The court’s exchange with Juror 20 (who sat on the jury) is typical:
“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 artiсles 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.
. The majority’s criticism of Skilling’s counsel for failing to ask questions of many of the prospective jurors, cf. ante, at 389,
. Although the District Court underestimated the extent of the community hostility, it was certainly aware of the ubiquity of the pretrial publicity, acknowledging that “all of us have been exposed to substantial media attention about this case.” Id., at 841a. The court even made an offhand remark about one of the prior Enron prosecutions, “the Nigerian barge case,” apparently expecting that the prospective jurors would understand the reference. Id., at 840a.
. Taking a more defendant-favorable line than most prospective jurors, Juror 17 stated that he “thought the guy [on the radio] was pretty narrow minded,” that “everyone should be considered innocent totally until they get a chance to come [to] court,” and that the Government might have been overzealous in some of its Enron-related prosecutions. Id., at 863a-864a. He added, however, that he “believe [d] there was probably some accounting fraud [at Enron] ."Id., at 864a. The District Court denied the Government’s request to remove Juror 17 for cause, but he did not ultimately sit on the jury.
. The majority attempts to downplay the significance of Juror 29 by noting that she did not end up on the jury because Skilling used a peremptory challenge to remove her. See ante, at 395, n. 31,
. The majority also notes that about two-thirds of the seated jurors and alternates (11 of 16) had no personal Enron connection. Ante, at 389-390,
. As one of Skilling’s jury experts observed, there is a “tendency in voir dire of jury pool members in high-profile cases to minimize their exposure to media, their knowledge of prejudicial information, and any biases they may have.’’ App. ¶99, at 763a; see also id., ¶95, at 637a (“Those who perceive themselves or wish to be perceived as good citizens are reluctant to admit they cannot be fair’’). For this reason, the fact that “none of 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,
. Many other seated jurors and alternates expressed similarly troubling sentiments. See, e.g., Supp. App. 57sa-60sa (Juror 20) (obtained Enron-related news from the Chronicle and “local news stations’’; blamed Enron’s collapse on “[n]ot enough corporate controls or effective audit procedures to prevent mismanagement of corporate assets’’; and was “angry that so many people lost their jobs and their retirement savings’’); id., at 72sa-75sa (Juror 38) (followed Enron-related news from various sources, including the Chronicle; was “angry about what happened’’; and “fe[It] bad for those that worked hard and invested in the corporation] only to have it all taken away’’); id., at 117sa-118sa (Juror 64) (had several friends who worked at Enron and lost money; heard about the Enron cases on the news; described the collapse as “sad” because “people lost jobs [and] money—lots of money’’; and believed the Government “did the right thing’’ in its investigation); id., at 177sa-181sa (Juror 87) (received Enron-related news from the Chronicle, Channel 13 news, the O’Reilly Factor, Internet news sources, and friends, family, and co-workers; attributed Enron’s collapse to “[p]oor management [and] bad judgment—greed’’; lamented “[t]he sad state of the long-term loyal employees who are left with nothing in their retirement accounts’’; and “admire [d] [the] bravery’’ of Enron whistleblower Sherron Watkins “for bringing the situation to the attention of the public, which stopped things from getting worse’’); id., at 191sa-195sa (Juror 90) (heard Enron-related news from his wife, co-workers, and television; wrote that “[i]t’s not right for someone ... to take’’ away the money that the “small average worker saves . . . for retirement all his life’’; and described the Government’s Enron investigation as “a good thing’’); id., at 221sa-225sa (Juror 113) (obtained information about Enron from a “co-worker [who] was in the jury pool for Mrs. Fastow’s trial’’; worked for an employer who lost money as a result of Enron’s collapse; found it “sad” that the collapse had affected “such a huge number of people’’; and thought “someone had to be doing something illegal’’); id., at 236sa-237sa (Juror 116) (knew a colleague who lost money in Enron’s collapse; obtained Enron-related news from the “Houston Chronicle, Time 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’’).
. Several other jurors fell into this category. Juror 67 wrote on his questionnaire that he had heard about Enron from the Chronicle and “Internet news sources.’’ Id., at 133sa. He was questioned for 90 seconds, during which time he indicated that he had read an article on the Internet the preceding night “about the jury selection taking place today, stuff like that.’’ App. 944a. Juror 99 wrote that she had not heard or read about the Enron cases and did not “know anything about’’ Enron. Supp. App. 210sa. The District Court questioned her for barely one minute. She stated that she had “[n]ot really’’ learned more about the case, but added that she had heard “this and that’’ from her parents. App. 995a-996a. The court did not press further.
. The majority suggests that the fact that Skilling “challenged only one of the seated jurors for cause’’ indicates that he did not believe the other jurors were biased. Ante, at 396,