*1 SKILLING, JEFFREY K. Petitioner
v
UNITED STATES
177 L. Ed. 2d
and mayor, concurring and Soto- Scalia, J., opinion JJ. filed an in in part concurring and J., Ginsburg, opinion delivered the Thomas, J., in judgment, which Court, I Part of which was J., in joined, Kennedy, and which Roberts, J., Stevens, joined by C. and Alito, J., joined except as to Part III. Scalia, Thomas, Alito, Kennedy, and in opinion concurring part filed an JJ., II joined by Part of which was in concurring judgment. and mayor, Soto- Roberts, J., Scalia, Kennedy, C. and J., opinion concurring filed an Thomas, JJ., III and and Part of in in in part dissenting part, Roberts, J., joined by which was C. JJ., Breyer, joined. which Stevens and
OPINION OF THE COURT conclude, meaning, we would encoun Ginsburg vagueness Justice delivered the ter a shoal. We therefore opinion only bribery of the Court. hold that 1346 covers § and kickback schemes. Because Skill In Corporation, Enron then ing’s alleged misconduct entailed no highest-revenue-grossing the seventh kickback, bribe or it does not fall America, in company crashed into proscription. within 1346’s We § in bankruptcy. opin- We consider this in in part therefore affirm part. and vacate questions arising ion two prosecution from the Jeffrey Skilling, long- of executive,
time Enron for crimes com- I corporation’s mitted before the col- in Corpora- Founded Enron First, lapse. pretrial publicity did grew headquarters tion from its community prejudice prevent Skilling Houston, Texas, into one of the Second, obtaining from a fair trial? leading energy companies. world’s jury improperly did the convict Skill- Skilling launched his career there ing conspiracy to commit “honest- Lay, compa- 1990 when Kenneth fraud, services” wire 18 U.S.C. §§ founder, him ny’s hired to head an 1343, 1346? subsidiary. Skilling steadily Enron Answering questions, no to both ranks, through corporation’s rose Skilling’s Fifth Circuit affirmed con- serving president operat- as and chief conclude, victions. We common officer, then, ing beginning Appeals, with the Court of that Skill- February as chief executive of- fails; ing’s argument fair-trial later, August ficer. Six months on 2001, Skilling resigned from Enron. Skill- Less than four months after Skill- hold, ing, we did not establish that a ing’s departure, spiraled Enron into presumption juror prejudice arose stock, bankruptcy. which had traded at August company’s The or that actual bias infected the per share $90 disagree that tried him. But we with plummeted pennies the Fifth Circuit’s honest-services rul ing. per Attempting share late 2001. proscribing fraudulent de comprehend what caused the cor- privations intangible right of “the poration’s collapse, Depart- the U. S. services,” 1346, in Congress honest § ment of Justice formed an Enron tended at least to reach schemes to Force, comprising prosecutors Task involving defraud bribes and kick Investiga- and Federal Bureau of Construing backs. the honest-services agents tion from around the Nation. beyond statute to extend that core *16 fraud; in investigation particu- The Government’s un- securities and wire lar, conspiracy alleged Skilling sought covered an elaborate it had prop up “depriv[e] Enron’s short-run stock to Enron and its sharehold- prices by overstating company’s intangible right [his] ers of the Id., ¶87, In well-being. years financial lowing fol- honest services.” at 318a.1 bankruptcy, Enron’s the Gov- charged The indictment further Skill- prosecuted ernment employees dozens of Enron ing with more than 25 substantive in participated who fraud, fraud, counts of securities making wire time, In scheme. the Government En- representations false way up worked its auditors, trading. ron’s and insider Skilling November moved corporation’s venue; to transfer the trial to another July chain of command: On hostility he contended that him in toward grand jury Skilling, Lay, indicted and Houston, coupled with exten- Causey, Richard Enron’s former chief pretrial publicity, poisoned sive had accounting officer. potential jurors. support To this as- sertion, Skilling, by aided media ex- defendants, These three the indict- perts, submitted hundreds of news reports detailing Enron’s alleged, ment downfall; he “engaged to deceive the wide-ranging scheme presented аlso affidavits from in- investing public, shareholders, cluding Enron’s . . . the ex- En- performance about the true perts engaged portraying he commu- (a) by: manipulat- ron’s businesses ing nity compari- attitudes Houston publicly reported Enron’s finan- potential son to other venues. (b) results; making public cial statements about Enron’s financial mance and results that were false and The U. S. District Court for the representations Texas, in Southern District of accord perfor- rulings with two earlier instituted prosecutions,2 Enron-related denied ¶5, misleading.” App. p. 277a. Despite the venue-transfer motion. “isolated incidents of Skilling co-conspirators, and his intemperate continued, indictment themselves as a result of the scheme through salary, “enriched observed, commentary,” the court me coverage [mostly] “ha[d] dia been ob bonuses, grants of unemotional,” jective and and the options, profits, stock and stock and other facts ofthe case were “neither heinous Id., ¶14, prestige.” at 280a. App. nor sensational.” to Brief for Moreover, United States 10a-11a.3 charged Count of the indictment commonly” ha[d] “courts favored “ef- conspiracy with to commit 1. The mail- and wire-fraud statutes criminalize the use of the mails or wires in furtherance defraud, “any obtaining money property by scheme or artifice to or for or means of false or (mail (wire fraud); pretenses, representations, promises.’’ fraudulent fraud). or 18 U.S.C. § § ’’ statute, The honest-services defines “the term ‘scheme or artifice to defraud’ § provisions deprive intangible right these to include “a scheme or artifice to another of the of honest services.’’ (SD Fastow, 2003); Supp. 2. See United States v. 292 F. 2d Tex. Order in United States (SD Hirko, Tex., 24, 2004), Record, 484, p. rulings v. No. 4:03-cr-00093 Nov. Doc. 6. These were judges judges residing made two other of the same District. Three in the area thus independently found that defendants in Enron-related cases could obtain a fair trial in Houston. Painting picture coverage surrounding collapse, a different of the media Enron’s Justice Sotomayor’s opinion heavily experts relies on affidavits of media consultants submitted 428, 429-430, 431, by Skilling support E.g., post, of his venue-transfer motion. *17 any rejected fective voir dire ... to ferret out The District Court the Gov Id., [juror] pub- bias.” at 18a. Pretrial sparer inquiries ernment’s favor of case, licity about the the court con- Skilling’s Skilling’s ques submission. cluded, presump- did not warrant a helpful,” “[we]re tions more the court tion that would be unable to said, [they] generally [we]re “because Id., obtain a fair trial Houston. at open-ended w[ould] . . . and allow the 22a. potential jurors give to us more mean ingful information.” at 9539. The leading up the months to the submission, Skilling’s court converted trial, the District Court solicited from modifications, slight with into a 77- parties questions might the court question, 14-page document that prospective jurors. use to screen Un- about, prospective jurors asked inter agree questionnaire’s able to on a alia, expo their sources of news and publicity, sure to Enron-related be content, Skilling format and and the concerning liefs Enron and what dueling Government submitted ments. On venire members’ sources of Enron-related Government docu- collapse, opinions regard caused its ing guilt to the possible the defendants and their news, example, innocence, relationships or and proposed that tick company anyone and to affected generic boxes from a checklist of bels such as la- by its demise.4 “television,” “[newspa- “[r]adio,” 8415;
per,” and Record Skill- 2005, In November the District ing proposed probing questions more questionnaire Court mailed the to 400 asking venire members to list specific names of their media sources prospective jurors and received re- sponses ees. The court emptions nearly from all the address- report st[ood] and to on “what out granted hardship ex- things [their] mind[s]” of “all the approximately seen, [they] ha[d] heard or read about id., individuals, 11773-11774, id., at and Enron,” at 8404-8405. part 2d, 2d, 685; post, post, at n. 177 L. Ed. аt n. 177 L. Ed. at at 177 L. 2d, 459-460, 2d, Skilling-employed experts Ed. at n. at 691. These emphasized negative selected and statements in various news stories. But the District Court Judge experts’ samples representative coverage large; having “[m]eticu- did not find the of the lous[ly] Skilling presented, reviewed] [of all of the evidence” the court concluded that “incidents reports using] less-than-objective language” largely news were dwarfed “the fact-based tone of 7a, 10a, App. post, most of the articles.” to Brief for United States 11a. See also items”). (acknowledging “many straightforward at 673 of the stories were news following: your opinions compensation included the “What are about Questions receive?”; members, large corporations you, any family executives of “Have or friends ever worked with,” with,” applied Corporation any for or for work “done business or “owned stock in Enron or partnership?”; you anyone negatively Enron subsidiaries “Do know . . . who has been affected Enron?”; any way by happened you opinion or hurt what “Do have an about the cause of the YES, collapse your opinion? you your opinion?”; you of Enron? If what is On what do base “Have YES, any please heard or read about of the Enron cases? If tell us the name of all sources from cases.”; you you any any which have heard or read about the Enron “Have read books or seen YES, describe.”; please you angry happened movies about Enron? If “Are about what with Enron? YES, YES, please explain.”; you opinion Jeffrey Skilling ...[?] If “Do have an about . . . If what is heard, read, your opinion? you your opinion?”; anything you On what do base “Based on have or told[,] you any opinion guilt Jeffrey Skilling[?] been do have about the or innocence of. . . If. . . YES , please explain.”; any opinion you may regarding any “[W]ould . . . have formed Enron or prevent you impartially considering presented during defendants from the evidence the trial of. . . , Jeffrey Skilling[?] please explain.”; anything you If YES or UNSURE . . . “Is there else feel is important you?” for the court to know about Record 13013-13026. parties, approval, ing responses potential jurors the further winnowed the ing with the court’s from pool by excus- I lawyers than the on either side. cause, hardship, another 119 for people don’t know whether are sus- id., physical disability, or I if I picious lawyers—but think exclude, parties agreed 13594. The I person question, get ask a will a in particular, every” pro- “each and if response candid much easier than spective juror pre- who said that a lawyer question.” Id., asks the *18 existing opinion about Enron or the 11805. prevent defendants would her from impartially considering the evidence promised give But the court coun- Id., at trial. at 13668. opportunity followup sel an questions, to ask On December three weeks ibid., agreed and it that before the date scheduled for the com- venire members should be examined trial, Causey pleaded mencement of individually pretrial publicity, about guilty. Skilling’s attorneys immedi- id., at 11051-11053. The court also continuance, ately requested a and jointly pe- allotted the defendants agreed delay the District Court proceedings the remptory challenges, more than the January until the end of prescribed by standard number Fed- Id., interim, 2006. at 14277. the eral Rule of Criminal Procedure 24(b)(2) (c)(4)(B). change-of-venue renewed his Id., at 13673- motion, arguing juror ques- that the 13675. pervasive tionnaires revealed bias began January Voir dire on Causey’s and that news accounts of empha- 2006. The District Court first guilty plea further tainted the importance sized to the venire the If pool. Houston remained the trial impartiality explained pre- venue, Skilling urged “jurors that sumption of innocence and the Gov- questioned individually by need to be trial, proof. ernment’s burden of The both the Court and counsel” concern- instructed, the court next forum “to seek was not a ing opinions “pub- their of Enron and En- vengeance against Id., licity issues.” at 12074. officers,” “provide ron’s former or to again The District Court declinеd to App. remedies for” its victims. 823a. Skilling, move the trial. cluded, the court con- line,” stressed, “The bottom “is that we want... the court [ed] still had not “establish jurors who ... will pretrial publicity that and/or commu- faithfully, conscientiously impar- nity prejudice presumption raise[d] a Id., if tially serve selected.” at 823a- Id., jury prejudice.” of inherent In response query 824a. to the court’s questionnaires 14115. The and voir any prospective juror ques- whether dire, observed, provided the court ability tioned her instructions, to adhere to these [561 373] U.S. two individuals indi- im- safeguards adequate to ensure an fair; they they cated that could not be partial jury. at 14115-14116. id., cause, were therefore excused for 816a, 819a-820a. Denying Skilling’s request for dire, attorney-led voir the court said questioning After the venire as a years on the bench: group,5 prospective jurors brought the District Court I get “I’vefound ... more forthcom- one one to the Among questions, sympathy other the court asked whether toward the victims of Enron’s collapse justice overpower prospective jurors’ impartiality. App. or a desire to see done would 839a-840a. bench several venire members after the court refused to excuse them for Al- for individual examination. (Sealed).7 Supp. App. cause. 3sa-4sa varied,
though questions pro- objection. The court overruled this generally following cess tracked the expo- format: The court asked about oath, jurors After the took their sure to Enron-related news and the District Court told them could any content of stories that stood out anyone not discuss the case with or Next, prospective juror’s mind. proceed- follow media accounts of the questionnaire the court homed on ings. you,” “[E]ach the court ex- flag signal- answers that raised a red plained, absolutely “needs to be sure ing possible per- bias. The court then your concerning decisions pose followup mitted each side to only facts will be based on the evi- questions. Finally, after the venire you dence that hear and read this stepped away, member the court en- App. courtroom.” 1026a. challenges tertained and ruled on *19 Following a four-month trial and all, granted cause. the court one of deliberation, nearly days five the Government’s lenges three of the defendants’ for-cause chal- jury Skilling guilty found of 19 four; granted and denied it counts, including the honest-services- challenges conspiracy charge, fraud guilty and not parties agreed and denied six. The to insider-trading of 9 counts. The jurors excuse three additional for Skilling District Court sentenced to hardship. cause and one for imprisonment, years’ 292 months’ 3 By day, the end of the the court had release, in supervised and million $45 qualified prospective jurors, restitution. sufficient, allowing pe- number remptory challenges, empanel appeal, Skilling to On raised a host of convictions, jurors challenges alternates.6 Before the to his includ- in, jury Skilling objected ing was sworn to the fair-trial and honest-services seating jurors. arguments presses Regard- of six He did not he here. biased; former, in ini- ing contend that were fact the Fifth Circuit instead, urged tially he that he would have determined that the volume and peremptories negative coverage gen- used to exclude them tone of media supply by by collapse had he not exhausted his erated Enron’s created a striking presumption juror prejudice. procedures style place 6. Selection of similar and duration took in three Enron-related criminal LLP, prosecuted cases earlier (SD Tex.) in Houston—United States v. Arthur Andersen No. 4:02-cr-00121-1 accountants); (charges against Bayly, Enron’s outside United States v. No. 4:03-cr-00363 (SD Tex.) (charges against Lynch alleged Nigerian Merrill and Enron executives for sham sales of (SD Tex.) (fraud Hirko, barges); insider-trading charges United States v. No. 4:03-cr-00093 executives). (In against five Enron Broadband Services See Brief for United States 9 all three cases, jury questionnaire pool potential the District Court “distributed a to a оf several hundred jurors; responses questionnaire dismissed individuals whose to the demonstrated bias or other characteristics; and, counsel, disqualifying questioning by after further the court and selected a jury remaining day.’’); Response from the venire in one Government’s Memorandum of Law in to (SD Skilling, Defendants’ Joint Motion to Transfer Venue in United States v. No. 4:04-cr-00025 Tex., 3, 2004), Record, 231, pp. (describing depth jury-selection process Dec. Doc. 21-28 trials). Bayly the Arthur Andersen and requested peremptory rejected 7. had an additional strike each time the District Court court, objection. already granted peremptories, supra, a for-cause The which had two extra see request. denied each (2009).8 “[T]he F.3d The court also honest-services fraud. was potential prejudice stemming Skilling,” noted entitled to convict stated, the court “(1) Causey’s guilty plea from and from “on these elements”: large fiduciary duty number of victims Hous- material breach of a ... (2) ton—from the of Enron that results a detriment to the “thousands employees employer,” including one occasioned employee’s an decision to “withhold information, i.e., material informa jobs, [who] . . . lost their tion that he had reason to believe 401(k) and . . . saw their accounts employer would lead a reasonable out,” wiped to Houstonians who suf- Id., change its conduct.” at 547. The Id., spillover fered economic effects. Fifth Circuit did not address Skill 559-560. ing’s argument the honest- stated, Appeals The Court of how statute, if interpreted services not ever, presumption preju [of that “the actions, exclude his should be invali rebuttable,” dice] is and it therefore unconstitutionally vague. dated as examined the voir dire to determine Defendant-Appellant Brief for Skill empan whether “the District Court (CA5), ing p. No. 06-20885 n. Id., impartial jury.” eled an (internal at 561 21. marks, italics, quotation omitted). Arguing that the Fifth Circuit erred capitalization and some The claims, in its consideration of these was, in voir dire the Fifth Circuit’s Skilling sought relief from this Court. view, “proper thorough.” certiorari, granted We Moreover, noted, the court Skill ing challenged only had one seated (2009), and now affirm *20 juror—Juror Although 11—for cause. troubling Juror made some com [561 377] U.S. corporate greed, ments about the Dis part, vacate demeanor, [his] trict Court “observed in part, pro- and remand for further answers, listened to his and believed ceedings.9 Skilling’s We consider first government prove he would make the allegation juror prejudice, of Id., sum, its case.” at 564. the Fifth next, argument. his honest-services Circuit found that the Government II presumption had overcome the of prejudice and that had not Pointing community passion to “the any juror actually “show[n] that who by collapse aroused Enron’s and the prejudiced against sat was him.” Ibid. vitriolic media treatment” aimed at him, Appeals rejected Skilling argues
The Court of
also
that his trial
in
Skilling’s
proceeded
claim that his conduct did “never should have
any conspiracy
not indicate
to commit Houston.” Brief for Petitioner 20. And
coverage
8. The Fifth Circuit described the media
as follows:
newspapers
many personal
sympathetic
“Local
ran
interest
stories
in which
individuals
expressed feelings
anger
betrayal
sports
[Houston]
of
toward Enron.
. . . Even the
Chronicles
page
Skilling’s guilt
foregone
Similarly,
wrote of
as a
conclusion.
the Chronicle's ‘Pethouse Pet of
pet
‘enjoyed watching
jerks being
away
the Week’ section mentioned that a
had
those Enron
led
(footnote
F.3d,
examples
coverage.’’
handcuffs.’ These are but a few
of the Chronicle's
at 559
omitted).
granted
arguments
raising
9. We also
certiorari
and heard
this Term in two other cases
States,
08-876;
questions concerning
scope.
the honest-services
statute’s
See Black v. United
No.
States,
Weyhrauch
Today
light
v. United
No. 08-1196.
we vacate and remand those decisions in
of
Black,
695;
opinion.
post, p.
Weyhrauch, post, p.
this
130 S. Ct.
177 L. Ed. 2d
S. Ct.
raises two distinct
theory
system
[trial]
“The
of our
by failing
did the District Court err
to is that the conclusions to be reached
move the trial
to a different venue
only by
a case will be induced
presumption
prejudice?
based on a
court,
argument
open
evidence and
and not
Second,
prejudice
did actual
contami-
influence,
by any
outside
Skilling’s jury?10
nate
private
public
whether of
talk or
print.” Patterson v. Colorado ex rel.
A
Colo.,
Attorney General
proceeding
by addressing
pre-
to a differ our discussion
found,
Houston,
Assuming,
presumption
prejudice
as the Fifth Circuit
that a
arose in
question presented
Skilling’s petition
actual-prejudice
argument
for certiorari casts his
as an
when,
ever,
inquiry
presumption may
Although
into
if
be rebutted. See Pet. for Cert. i.
we find
*21
case,
presumption
prejudice
actual-prejudice
a
of
unwarranted
in this
we consider the
issue to be
14.1(a).
fairly
question
agreed
subsumed within the
we
to decide. See this Court’s Rule
21,
governed by
11. Venue transfer
in federal court is
Federal Rule of Criminal Procedure
which
proceeding
instructs that a “court must transfer
the
...
to another district
if the court is satisfied
great
prejudice
against
transferring
so
a
the defendant
exists in the
district
that
the
impartial
language
suggests,
defendant cannot obtain a fair and
trial
there.’’ As the
of the Rule
necessity
granted
healthy
appellate-court
district-court
calls on the
of transfer are
a
measure of
Co.,
240, 245,
769,
respect.
Mining Mfg.
See Platt v. Minnesota
&
376 U.S.
84 S. Ct.
11 L. Ed. 2d
(1964).
cases,
highly charged
674
Federal courts have invoked the Rule to move certain
for
example,
prosecution arising
bombing
Building
the
from the
of the Alfred P. Murrah Federal Office
(WD
1996).
1467,
City.
McVeigh,
Supp.
They
in Oklahoma
See United States v.
918 F.
1474
Okla.
deny
requests
involving
have also exercised discretion to
venue-transfer
in cases
substantial
pretrial publicity
community impact,
example,
prosecutions
resulting
for
the
from the 1993
(KTD)
Salameh,
(SDNY,
bombing,
World Trade Center
see United States v.
No. S5 93 Cr. 0180
(KTD)
15, 1993);
(SDNY,
18, 1997),
Sept.
Yousef,
July
United States v.
No. S12 93 Cr. 180
aff'd 327
(CA2
56,
2003),
Lindh,
prosecution
press
F.3d
and the
of John Walker
referred to in the
as the
(ED
2002).
Taliban,
Lindh,
541,
Supp.
American
see United States v.
212 F.
2d
549-551
Va.
argue,
process challenge,
does not
distinct
from his due
the District Court abused its
by declining
discretion under Rule 21
to move his trial. We therefore review the District Court’s
only
compliance
venue-transfer
decision
with the Constitution.
in
sumption
prejudice
from which the We followed Rideau’s lead
two
in
analysis
Skilling’s
Fifth Circuit’s
coverage
later cases which media
proceeded.
prec-
case
The foundation
manifestly
pros-
tainted a criminal
Louisiana,
edent is Rideau v.
373 U.S.
Texas,
ecution.
Estes v.
381 U.S.
723,
1417,
83 S. Ct.
small Louisiana
three
before
employees,
bank
and killed one of
exposure
trial swelled into excessive
interrogated
them. Police
Rideau
during preliminary
proceedings
court
jail
present
without counsel
and ob-
reporters
аs
and television crews
in-
tained his confession. Without
forming
overran the courtroom and “bom
Rideau,
seeking
no less
his
community
[ed]
bard
. . . the
with the
consent,
police
filmed the interro-
sights
pretrial
and sounds of’ the
gation.
separate
On three
occasions hearing. The media’s overzealous re
trial,
shortly before the
a local televi-
efforts,
observed,
porting
we
“led to
film
sion station broadcast the
diences
to au-
disruption”
considerable
and denied
24,000
53,000
ranging
from
“judicial serenity
and calm to
individuals. Rideau moved for a
[Billie
Estes]
which
Sol
was entitled.”
venue,
change
arguing
that he
Id.,
536,
1628, 14
85 S. Ct.
L. Ed. 2d
could not receive a fair trial
occurred,
parish where the crime
population
approxi-
which had a
Maxwell,
Similarly,
Sheppard v.
150,000
mately
denied the
ally
people. The trial court
86 S. Ct.
motion,
and a
eventu-
(1966),
reporters
2d 600
news
exten
Supreme
convicted Rideau. The
sively
story
Shep
covered the
of Sam
upheld
Court of Louisiana
the convic- pard,
bludgeoning
who was accused of
tion.
pregnant
“[B]edlam
his
wife to death.
people [in
We reversed. “What the
reigned
during
at the courthouse
community]
saw on their televi
practi
trial and newsmen took over
sets,”
observed,
Rideau,
sion
we
“was
courtroom,”
cally
thrusting
the entire
in jail,
flanked
the sheriff and two
Id.,
jurors “into the role of celebrities.”
troopers, admitting
state
detail the
robbery, kidnap
commission of the
coverage,
2d 600. Pretrial media
Id.,
ping, and murder.”
83 S. which we characterized as “months
“[T]o
Ct.
corrupted by press coverage”;
necessity,
our
as a matter of
brought
to the attention of all the
decisions, however, “cannot be made
intelligent people
vicinity,
and
proposition
juror
to stand for the
scarcely any
among
one can be found
exposure to . . . news accounts of the
jurors
those best fitted for
who has
presumptively
crime . . . alone
de
it,
not read or heard of
not some
in
and who has
prives
process.”
the defendant of due
impression
opinion
or some
Florida,
794,
Murphy v.
U.S.
798-
merits.”).
A
respect
presump-
to its
799,
2031, 95 S. Ct.
L. Ed. 2d 589
prejudice,
tion of
our decisions indi-
(1975).12
also, e.g.,
See
Patton v.
cate,
only
attends
the extreme case.
Yount, 467
U.S.
1025,
2885,
U.S.
104 S. Ct.
Rideau, Estes,
Relying
Shep-
on
and
(1984).13
643 (“[T]he ample, ity opinion) we noted that the murder was defendant’s own 150,000 in parish only committed of probably pro [is] confession the most Houston, contrast, in residents. is the damaging bative and evidence that (inter in populous city fourth most the Na against can be admitted him.” trial, Skilling’s tion: At the time of omitted)). quotation nal marks Pre more than 4.5 million individuals eli publicity Skilling trial about was less in gible jury duty for resided the prejudicial. memorable and No evi App. Houston area. 627a. Given this in smoking-gun variety dence of the large, pool potential jurors, diverse of prejudgment culpability. vited of his suggestion impartial the indi Chagra, See United States v. 669 F.2d empaneled viduals could not be is (CA5 1982) 241, 251-252, ( “A n. hard to sustain. See Mu’Min v. Vir in jury may difficulty have disbeliev 415, 429, 111 ginia, 500 U.S. S. Ct. ing forgetting opinion or a defendant’s (1991) 1899, 114 (poten L. Ed. 2d 493 guilt difficulty of his own but have no prejudice mitigated by tial for the size in rejecting opinions of others be “metropolitan Washington well-founded.”). they may cause not be area, [D. C.] statistical which has a million, in population of over 3 Third, unlike cases which trial which, unfortunately, hundreds of swiftly crime, widely reported followed a year”); murders are committed each Rideau, U.S., e.g., of Nev., Gentile v. State Bar 83 S. Ct. 10 L. Ed. 2d over 1030, 1044, 111S. Ct. years elapsed four between Enron’s (1991) (re (plurality opinion) 2d 888 Al- bankruptcy Skilling’s trial. prejudice duced likelihood of where though reporters covered Enron- pool venire was drawn from a of over throughout period, related news this individuals).15 600,000 the decibel level of media attention years diminished somewhat Second, although news stories following collapse. App. Enron’s See kind, Skilling they about contained no confession or other bla- were not id., 700a; 785a; Yount, U.S., 1032, 1034, tantly prejudicial information of the 2d 847. type readers or viewers could not rea- sonably sight. expected be to shut from Finally, prime significance, and of dramatically Rideau’s him Skilling’s jury acquitted of nine insider-trading lier instituted Enron-related Similarly, counts. ear-
staged prosecu- instance, guilt, yielded overwhelming victory admission of was tions no Rideau, In likely imprinted indelibly the mind for the Government.16 Es- tes, anyone Sheppard, who watched it. Cf. Parker marked con- trast, Randolph, jury’s v. the in verdict did not under- (1979) (plural- any way supposition mine According survey by Skilling conjunction to a commissioned with his first motion for a change, only they venue 12.3% of Houstonians named him when asked to list Enron executives guilty App. response followup question “[w]hat believed of crimes. 375a-376a. to the words come you Skilling?”, respondents say single to mind when hear the name Jeff two-thirds of failed to word, id., negative nothing at 376a: 43% either had never heard of or stated that came to name, Skilling’s mind when heard his and another 23% knew name was associated with him, 3210-3211; reported opinion App. Enron but no about Record see 417a-492a. summarizes, Hirko, jury days “[l]n 16. As the United States deliberated for several and did defendant; any Bayly, routinely not convict Enron which was described as ‘the first Enron trial,’ defendants, acquitted criminal convicted five . . . but a former Enron executive. At *24 victims,” F.3d, juror trigger bias. It would be odd for an appellate presume prejudice presumption prejudice. Although court to of in jurors’ widespread community impact a case which actions run the necessitated See, presumption. e.g., counter to that careful identification Arzola-Amaya, inspection prospective jurors’ United States v. 867 and of Enron, F.2d connections to screening questionnaire the extensive followup voir dire were well suited to that task. (CA5 1989) (“The hindsight efficacy And shows the of jury’s ability to discern a failure of devices; infra, these as we discuss proof guilt alleged of of some of the 648-649, crimes indicates a fair minded consid- eration of the issues and reinforces our belief and conclusion that media deprivation jurors’ links to Enron were either non- existent or attenuated. the did not lead to the Finally, although Causey’s “well- coverage publicized plead guilty” decision to right impar- [the] of to an shortly of danger before trial created a trial.”). tial juror trial, short, Skilling’s shares F.3d, prejudice, 554 little common with those which appropriate the District Court took approved presumption juror we of steps to reduce that risk. The court prejudice. The Fifth Circuit reached delayed proceedings by two opposite on the primar the ily conclusion based weeks, lessening immediacy of magnitude negative development. during And voir tone of media attention directed at dire, prospec the court asked about “pretrial publicity— Enron. But jurors’ exposure public tive ity, including to recent pervasive, publicity— even adverse regarding Causey. news inevitably does not lead to an unfair Only two venire members recalled the Stuart, trial.” Nebraska Press Assn. v. 427 U.S. plea; Causey by neither mentioned 49 name, ultimately and neither served (1976). case, L. Ed. 2d 683 this as 888a, Skilling’sjury. App. on 993a. noted, just news stories about Enron Although publicity about a codefen- guilty plea inquiry dant’s calls for vivid, present did not the kind of guard against not it did not here—warrant an auto prejudice, actual it does unforgettable information we have satisfied, ordinarily—and, we are recognized particularly likely as produce prejudice, and Houston’s size presumption prejudice. matic imp diversity diluted the media’s act.17 presumption Persuaded that no arose,18we conclude that the District
Nor did Enron’s “sheer number of million, sentencing phase Bayly, slightly $13 found a loss amount of over even though government argued $40 had that the true loss . . . was million.” Brief for United States (citation omitted). 9-10 Circuit, moreover, separate 17. The Fifth did not media attention aimed at from that generally. by Skilling support devoted to Enron’s downfall more Data submitted of his first suggested percentage specifically motion for a venue transfer that a slim of Enron-related stories event, App. publicity “[W]hen named him. 572a. is about rather than directed at defendants, may any prejudicial impact.” Hueftle, individual this lessen United States v. 687 F.2d (CA10 1982). 1305, 1310 rebutted, and, parties disagree presumption prejudice 18. The about whether a can be if it can, proof governs Compare what standard of issue. Brief for Petitioner 25-35 with Brief for (1981) Court, declining (plurality opinion); to order a venue L. Ed. 2d States, change, did not exceed constitutional Connors v. United *25 408, 408-413, 951, limitations.19 15 S. Ct. (1895). 1033 B pretrial publicity When is at issue, “primary judg We next consider whether actual reliance on the prejudice Skilling’s jury. [espe infected Voir ment of the trial court makes dire, asserts, Skilling cially] good judge did not ad- sense” because the equately juror publicity detect and defuse bias. “sits the locale where the affirmatively may “[T]he record . . . con- is said to have had its effect” and maintains, prejudice, per firm[s]” he be- base her evaluation on her “own jurors “pre- ception depth cause several seated of the and extent of judged guilt.” might his Brief for Petitioner news stories that influence a Mu’Min, U.S., 427, 111 disagree Skilling’s juror.” 21. We with char- 500 at 1899, 114 Appel acterization of the voir dire and the S. Ct. L. Ed. 2d 493. jurors through making selected it. late courts after-the-fact as impact
sessments of the media’s
on
jurors should be mindful that
their
judgments
on-the-spot
lack the
com
U.S.
prehension
possessed
of the situation
1
by
judges.
trial
hard-and-fast
formula dic
No
Reviewing
properly
courts are
necessary depth
tates the
or breadth
second-guessing
resistant
to
the trial
Wood,
of voir dire. See United States v.
judge’s
juror’s impar
estimation of a
123, 145-146,
57 S. Ct.
tiality,
judge’s appraisal
for that
is
(1936) (“Impartiality
Ed. 2d
service. We consider the ad-
847;
equacy
case, therefore,
jury
Skilling’s
81 L. Ed. 2d
selection
States,
Rosales-Lopez v. United
attentive to the re-
182, 188-189,
spect
due to district-court determina-
24-32,
arose,
not,
not,
presumption
United States
35-36. Because we hold that no
we need
and do
questions.
reach these
acknowledges
prospect
seating
19. The dissent
that “the
an unbiased
in Houston was not
compel
unconstitutionally
denying
so remote as to
the conclusion that
the District Court acted
Post,
2d,
Skilling’s
change
motion to
venue.’’
at 683. The dissent’s conclusion that
Skilling
accordingly
perception
adequacy
did not receive a fair trial
turns on its
of the
jury-selection process.
noted,
370-372,
juror impartiality
supra,
tions of
and of the
As
177 L.
necessary
measures
to ensure that
Ed.
and n.
impartiality.20
initially
District Court
screened ve-
by eliciting
nire members
their re-
sponses
comprehensive question-
to a
large part by Skilling.
deems the voir dire insuffi- naire drafted
because,
argues, jury
cient
he
selec-
survey helped
identify pro-
That
to
hours,”
“just
“[m]ost
tion lasted
the court’s
five
spective jurors excusable for cause
questions
were conclu-
springboard
and served as a
for fur-
sory[,] high-level, and failed ad-
questions put
remaining
ther
mem-
equately
probe jurors’
true feel-
was,
array.
bers of the
Voir dire thus
ings,”
“consistently
and the court
took
*26
words,
in the court’s
the “culmination
prospective jurors at their word once
841a;
lengthy process.” App.
of a
554
see
fair,
they
claimed
could be
no
(“We
F.3d,
562,
at
n. 51
consider
matter what other indications of bias
questionnaire
assessing
the . . .
the
present.”
were
Brief for Petitioner
whole.”).22In
quality of voir dire as a
(emphasis
10-11
prosecutions,
other Enron-related
[561
388]
U.S.
deleted). Our review
we
record, however, yields
of the
a differ-
note,
Courts,
inspecting
District
after
appraisal.21
ent
recognizes
20. The dissent
“the “wide discretion’ owed to trial courts when it comes to
issues,’’
447,
2d,
415,
jury-related
post,
(quoting
Virginia,
at
177 L. Ed.
at 684
Mu’Min v.
500 U.S.
427,
1899,
(1991)),
analysis
111 S. Ct.
for
vоir dire be-
no connection
Enron,
in
experience, potential ju-
jurors
its
at all to
while all other
forthcoming”
reported
rors were “more
when
at most an insubstantial
(Ju-
court,
counsel,
See, e.g., Supp. App.
the
rather than
asked link.
lOlsa
63) (“I
question.
par-
guy
the
ties, however,
Record 11805. The
ror
for Enron.
once met a
who worked
I
op-
were accorded an
cannot remember his
2d,
Notably,
“open-ended questions
[prospective jurors’] impressions
L. Ed.
at 691.
the
about
asked,
455,
2d,
Skilling’’
post,
Enron or
that
the dissent contends should have been
at
177 L. Ed.
689,
371-372,
4,
2d,
questionnaire,
supra,
at
were asked—on the
see
at
n.
177 L. Ed.
at 637.
Moreover,
gave Skilling’s
relatively
the District Court
counsel
free rein to ask venire members
See,
869a-870a;
id.,
878a, 911a,
responses
questionnaire.
e.g., App.
about their
on the
at
953a. The
questionnaire
plus followup opportunity
interrogate
potential
jurors
surely gave Skilling’s
456,
17,
2d,
permissible inquiry.’’
post,
avenue[s]
counsel “clear
for . . .
But see
at
n.
177 L. Ed.
at
(counsel
record,
App.
Skilling) (“Judge,
any questions,
689. See also
967a
for the
if I don’t ask
it.’’).
it’s because the Court and other counsel have covered
prosecutions
targeted
“Big
public accounting
23. One of the earlier
the
Five’’
firm Arthur
374,
6,
2d,
auditors,
supra,
Among
Andersen. See
at
n.
177 L. Ed.
at 639.
media readers and
reputation
likely sparked
name and
of Arthur Andersen
no less attention than the name and
2d,
reputation
Jeffrey Skilling.
supra,
Cf.
at
n.
177 L. Ed.
at 644.
considering
impartial
jury,
whether
was tried before an
the dissent
relies
See,
2d,
extensively
jury.
e.g., post,
on venire members not selected for that
at
n.
177 L. Ed.
members;
(quoting
questionnaires
at 674-675
of 10 venire
all were excused for cause before
commenced,
11891);
2d,
post,
(quoting
voir dire
see Record
at
n.
177 L. Ed.
at 675
members;
2d,
questionnaires
Skilling’s jury); post,
of 15 venire
none sat on
at
n.
177 L. Ed.
members;
(quoting
testimony
Skilling’s jury); post,
at 677
voir dire
of 6 venire
none sat on
at
453-458,
2d,
(reporting
length
testimony
at 687-691
at
voir dire
of Venire Members
29, 61, 74, 75,
101;
Skilling’s jury).
by nonjurors
none sat on
Statements
do not
question
adequacy
jury-selection
process;
themselves
call into
elimination of these
process
Critically,
venire members
is indeed one indicator
fulfilled its function.
as
649-650,
infra,
jurors
knowledge
discussed
the seated
showed little
in,
personally
by,
of or interest
and were
unaffected
Enron’s downfall.
name.”).25
Al-
pretrial publicity,
jurors
sway.28
As for
were not under its
jurors
specifically
and alternates
though many expressed sympathy for
paid
stated that
had
scant atten-
bankruptcy
victims of Enron’s
See, e.g.,
tion to Enron-related news.
speculated
greed
contributed to
(Juror 13) (would
App. 859a-860a
corporation’s collapse,
these sen-
“[b]asically”
ing
knowing
start out
noth-
timents did not translate into animus
toward
they
“I
just.
about the case because
. .
Skilling.
When asked whether
id.,
lot”);
[it]
didn’t follow
a whole
opinion
“ha[d] an
about
. . .
(Juror 78) (“[Enron]
any-
969a
thing
wasn’t
Jeffrey Skilling,” none of the seated
I
reading
that was interested
jurors and alternates
checked the
I
really
[about]
detail.
...
don’t
“yes”
response
box.29 And
to the
it.”).26
know much
about
The question
“any opinion [they]
whether
remaining
may
regarding
have formed
Enron or
[Skilling]
jurors
two
indicated that
nothing
the news influenced their
im-
prevent”
[would]
their
opinions
Skilling.27
about
partial consideration of the evidence
trial, every juror—despite options
that,
questionnaires
The
confirmed
“yes”
to mark
or “unsure”—instead
community prejudice
whatever
ex-
generally, Skilling’s
isted Houston
checked “no.”
(Juror 10) (“knew
Supp. App.
25. See also
11sa
some casual co-workers that owned Enron
(Juror 11) (“work[s]
stock’’); id.,
Enron’’); id.,
117sa; App.
at 26sa
with someone who worked at
(Juror 64) (two
(Juror
acquaintances
money
collapse); Supp. App.
940a
lost
due to Enron’s
236sa
116) (work colleague
money
bankruptcy).
lost
as a result of Enron’s
(Juror 10) (“I
App.
any
[Enron-related news]
26. See also
850a
haven’t followed
in detail or to
(Juror 11) (did
all.’’); id.,
“get
“just
[the
case]’’
extreme at
at 856a
not
into the details of
Enron
(Juror 20) (“I
out’’); id.,
collapsed],
tune[d]
[it]
[the]
[Enron
kind of
at 873a
was out of
state when
(Juror 38)
attention.’’);
id.,
personal
kept
paying
and then
сircumstances
me from
much
at 892a
(recalled
(Juror 50) (“I
id.,
“nothing
particular’’
coverage);
about media
at 913a
would hear it on
(Juror 63) (“I
out.’’); id.,
attention.’’);
just
really pay
the news and
let it filter in and
at 935a
don’t
*28
(Juror 64) (had
id.,
really’’
keeping up
any
“[n]ot
at 940a-941a
been
with and did not recall
news
(Juror 84) (had
Enron);
id.,
“anything
about
at 971a
not read
at all about Enron’’ because he did
(internal
(Juror 90) (“seldom”
omitted));
id.,
quotation
not “want to read that stuff’
marks
at 983a
(Juror 99) (did
id.,
programs);
read the Houston Chronicle and did not watch news
at 995a-996a
news;
newspapers
[this case]
not read
or watch the
“I don’t know the details on what
is or what
(Juror 113) (“never
is”); id.,
it”); id.,
really paid
[to]
made it what
it
at 1010a
that much attention
(Juror 116) (had
articles,”
“rea[d]
at 1013a
a number of different
but “since it hasn’t affected me
them).
personally,”
“specifically
any
could not
recall”
of
(Juror 67) (had
Id.,
preceding
at 944a
not read the Houston Chronicle in the three months
news”); id.,
opinion
the trial and volunteered: “I don’t form an
based on what
...
I hear on the
at
(Juror 87) (had
stories).
any opinions”
Skilling’s guilt
974a-975a
not “formed
about
from news
observed,
reviewing
impact
jurors
coverage
28. As the D. C. Circuit
the
on
of media
of the
scandal,
Watergate
may
surprise
lawyers
judges,
simply
“[t]his
come as a
and
but it is
a fact of
may
fascinating
public generally.”
life that matters which interest
them
be less
to the
United
(1976).
Haldeman,
31, 62-63,
Observer,
States v.
559 F.2d
n. 37
See also In re Charlotte
882 F.2d
(CA4 1989)
850,
(“[R]emarkably
eyes many,”
involving
“[c]ases
855-856
in the
of
such as those
the
defendants,
defendants,
DeLorean,
Watergate
by
the Abscam
and . . . John
all characterized
pretrial
reportage
commentary,
proceeded
juries
massive
media
nevertheless
to trial with
(indeed,
satisfactorily
blissfully
which . .. were
disclosed to have been unaffected
in some instances
untouched)
ABC, Inc.,
by
publicity.”);
unaware of or
that
Brief for
et al. as Amici Curiae 25-31
(describing
examples).
other
box,
juror
any
explaining
29. One
did not check
that she lived in another State when Enron
bankrupt
fully
regarding
[and]
went
and therefore “was not
aware of all the facts
Enron’s fall
(Juror 20).
coverage.” Supp. App.
jurors,
media
62sa
Two other
Juror 10 and Juror
indicated in
question
they
opinion
Skilling’s guilt,
answer
to a different
had an
about
but voir dire
397-398,
2d,
they
impartial.
infra,
established
could be
See
at
n.
177 L. Ed.
at
653-654, and 654.
Court,
asserts,
The District
to the six murders and the fact of
“accept[ed]
should not have
at
his indictment for four of them
face
jurors’ promises
They reported [Irvin’s]
value
of fairness.”
Indiana.
of-
In
if
plead guilty
promised
Brief for Petitioner 37.
Irvin v.
fer to
99-year
termination,
Dowd,
U.S.,
727-728,
sentence,
81 S. Ct.
but also the de-
hand,
Skilling points
6 L. Ed. 2d
on the other
of
out,
prejudice despite
prosecutor
we found actual
the
penalty,
to secure the death
jurors’
[Irvin]
assurances that
could be
and that
had con-
(the
impartial.
burglaries
Brief for Petitioner 26. Jus
fessed to
modus
turn,
Sotomayor,
repeatedly
operandi
tice
of these robberies was
Irvin,
regards
compared
relies on
which she
as
to that of the
closely analogous to this case. See
2d,
post, at
at 685
murders and
(dissent).
also,
441-
e.g., post,
See
noted).
similarity
story
One
442, 458, 460, 464,
dramatically relayed
a sheriff to devote his life to secur-
promise
of
680-681, 690, 691-692, 694. We dis
agree with that characterization of
ing [Irvin’s] execution .... Another
Irvin.
[Irvin]
characterized
as remorseless
and without conscience but also as
apart
The facts of Irvin are worlds
having
been found sane
a court-
Ir-
presented
from those
here. Leslie
In
appointed panel
many
of doctors.
vin stood accused of a brutal murder
[Irvin]
of the stories
was described
robbery spree
a small rural
six,’
slayer
as the ‘confessed
U.S.,
community. 366
parole violator and fraudulent-check
651 nearly days cause—“expressed counts after eration, meanwhile, five of delib- for the most obvi
suggests the ous bias.” Brief for Petitioner 35. See 460-461, 177 2d, post, court’s assessments were accurate. also L. Ed. at (dissent). Haldeman, 11 See United States v. 559 692 Juror stated that (CADC 1976). 31, 60, “greed part” triggered F.2d n. 28 Skill- on Enron’s conclude, ing, company’s bankruptcy we failed to show that and that cor executives, avarice, porate by his voir dire fell short of constitu- driven requirements.31 tional “walk a line that stretches sometimes legality something.” App. of 854a- But, 855a. as the Fifth Circuit accu summarized, rately Juror Skilling singles ju also out several in particular rors and contends Skilling “had ‘no idea’ whether ‘crossed that had openly were biased. See United States line,’ say and he ‘didn’t Martinez-Salazar, 304, v. 528 U.S. every probably that’ CEO is a crook. 316, 774, 120 S. Ct. He also asserted that he could be (2000) ( seating any juror “[T]he of require government fair and to who should have been dismissed for case, prove its that he did not be- cause . . . everything pa- lieve per, he read ‘get that he did not into the 396] reversal.”). In
require[s] coverage, re- details’ of the Enron that television, viewing type, claims of this the defer- he did not watch ” ence due to district courts is at its that Enron was ‘old news.’ 554 F.3d, “A pinnacle: findings trial court’s at 563-564.
juror impartiality may be overturned Despite greed, his criticism of Juror Mu’Min, only for manifest error.” 500 11 Skilling remarked that “earned U.S., S. Ct. L. 857a, salar[y],” App. [his] and said he (internal quotation Ed. 2d 493 omitted). marks problem” telling would have “no his moreover, Skilling, unsuc- 401(k) co-worker, who had lost funds cessfully challenged only one of the collapse, due to Enron’s that the cause, jurors “strong seated evi- if acquit, voted to that scenario came dence that he was convinced the id.., pass, at 854a. The District jurors [other] were not biased and had Court, noting [Ju that it had “looked any opinions not formed guilt.” as to his eye ror and . . . heard all his Washington, Beck v. 369 U.S. [answers],” im found his assertions of 541, 557-558, 82 S. Ct. Id., 858a; partiality credible. cf. (1962). 2d 98 With these consider- supra, at n. mind, Skilling’s ations specific allegations we turn to agree 651. We with the juror partiality. 11—
Skilling
Ap-
contends that Juror
Court of
only
juror
challenged peals
express finding
“[t]he
seated
he
Skilling emphasizes
every juror
that voir dire did not weed out
who suffered from Enron’s
collapse
grant
challenge
because the District Court failed to
his for-cause
to Venire Member
$50,000
ripple
whose retirement
fund lost
due to
effects from the decline in the value of Enron
however,
Instead,
App.
Critically,
Skilling’s jury:
stock.
880a.
Venire Member 29 did not sit on
using
peremptory challenge.
“[I]f [a]
[a
struck her
a
defendant elects to cure
trial
judge’s
ruling] by exercising
peremptory challenge,
subsequently
erroneous
for-cause
a
and is
sat,”
held,
by jury
juror
deprived
any
convicted
on which no biased
we have
“he has not been
Martinez-Salazar,
right.”
. . . constitutional
United States v.
(2000). Indeed,
peremptory challenge
[of]
L. Ed. 2d 792
the “use
to effect an instantaneous
cure
exemplifies
principal
peremptories:
help
of the error”
“a
reason for
secure the constitutional
guarantee
impartial
jury.”
of trial
an
936a; enough question [she] she did not “know what to answer” the thinking” completed angry was when she whether she was about demise). questionnaire, company’s Skilling’s the lutely” presumed Skilling but she “abso- counsel followup questions
innocent
declined to ask
any
and, indeed,
understanding
jurors
and confirmed her
of these
told
nothing
that the Government would “have to Juror 84 he had
prove”
to ask be-
id.,
guilt,
“gave
right
his
at 937a.
re-
cause she
all the
an-
sponse
followup questions
from swers.”
at 972a. Whatever Skill-
counsel,
Skilling’s
again
ing’s
wanting
she
stated
reasons for
to strike
presume
jury,
she would not
these four individuals from his
Skilling’s
apparently
regard
trial counsel and
consultants
did not
Juror 11 as so
bias[ed],”
“obvious[ly]
peremptory challenge.
Brief for Petitioner
as to warrant exercise of a
*32
A
credibly
they
he cannot
assert
dis-
played disqualifying
bias.33
place Skilling’s
To
constitutional
context,
challenge
we first review
sum,
In
Skilling failed to establish
origin
subsequent application
presumption
prejudice
that a
of
arose
of the honest-services doctrine.
or that actual bias infected the
Jurors,
that tried him.
the trial
1
correctly comprehended,
court
need
1872,
original
Enacted
the
predecessor
mail-
empty
not enter the box with
heads
provision,
fraud
impar
order to determine the facts
modern-day mail- and wire-fraud
if
tially.
juror[s]
“It is sufficient
laws, proscribed, without
further
lay
impression
[their]
[s]
can
aside
or elaboration, use of the mails to ad-
opinion [s] and render a verdict
“any
vance
scheme or artifice to de-
States,
McNally
fraud.” See
483 U.S.
v. United
2875,
107 S. Ct.
based
(1987) (internal quota-
L. Ed. 2d 292
presented
on the evidence
court.”
omitted).
1909,
In
tion marks
gress
Con-
Irvin,
U.S.,
1639,
81 S. Ct.
prohibit,
amended the statute to
Taking
ment of the
doctrine
chapter [of the United States Code
McNally
its tracks.
involved a state
alia,
prohibits,
inter
mail
who, in selecting Kentucky’s
officer
fraud,
fraud,
and wire
§
agent, arranged
procure
insurance
1343], the term ‘scheme or artifice
§
agent’s
a share of the
commissions via
to defraud’ includes a scheme or
paid
companies
kickbacks
deprive
artifice to
another of the
intangible right of honest services.”
offi-
§
U.S.,
partially
cial
360,
controlled. 483
The
have
back scheme “defraud
better insurance.” Ibid.
right
prosecutor maintained that the kick-
“in
scheme[,] the Commonwealth would
and
affairs conducted
353,
government Kentucky
prosecutor
107 S. Ct.
paid
to have the Commonwealth’s
a lower
absence of
2875,
did not
premium
honestly.”
good government
process
neither of the two due
essen-
officials,”
local and state
we read the
First,
phrase
intangible
tials.
“the
in scope
statute “as limited
to the
services,”
contends,
Id.,
right of honest
he
protection
property rights.”
at
adequately
does not
define what be-
360,
2875,
107 S. Ct.
Appeals
acknowledge
we
e.g., Hooper California,
v.
Skilling’s vagueness challenge
648, 657,
(1895) (“The
force,
has
for honest-services deci
elementary
297
that
rule is
preceding McNally
sions
were not
every
reasonable construction
clarity
consistency.
models of
or
See
to, in
must be resorted
order to save a
(describing
Brief for Petitioner 39-42
divisions of
unconstitutionality.”
statute
(emphasis
from
added)).
opinions).
post,
See also
See also Boos v.
at 665-667
312, 330-331,
Barry, 485 U.S.
108 S.
J.).
Scalia,
(opinion of
While the
(1988);
Ct.
McNally dominantly
consistently
88 S. Ct.
(1968).40
applied
bribery
the fraud statute to
in-
accordingly
We have
and kickback schemes—schemes that
structed “the federal courts ...
*36
were the basis of most honest-services
by
avoid constitutional difficulties
Int’l,
Wilander,
Court-Congress
interplay
39. We considered a similar
in McDermott
Inc. v.
498
337,
807,
(1991),
interpretation
U.S.
111 S. Ct.
[adopting limiting interpretation]
impenetrable jungle”—“un
a
were “an
discoverable, inconsistent,
fairly possible.”
[and]
such a construction is
inca
Boos,
U.S.,
331,
pable
yielding any meaningful
108 S. Ct.
1157,
333;
govern present
99 L. Ed. 2d
see United rules to
or future con
Harriss,
612, 618,
U.S.,
571,
2880,
States v.
347 U.S.
duct.” 413
93 S. Ct.
(1954)
74 S. Ct.
law.
several thousand
107 S. Ct.
659 (CA4 doctrine, conclude, 1347, 1979); we can and should 591 F.2d 1363 salvaged by confining scope be its cover[ed],” “uniformly . . . United pre-McNally applications. the core Paradies, 1266, 1283, States v. 98 F.3d (CA11 1996). n. 30 See also Tr. of Oral noted, already supra, As at 400- (counsel Government) Arg. 43 for the 401, 2d, 654-655, 177 L. Ed. at the (“[T]he pre-McNally bulk of honest gen honest-services doctrine had its services cases” entailed bribes or kick in prosecutions involving bribery esis (“Bribes backs); Brief for Petitioner 49 Shushan, F.2d, allegations. See 117 at paradigm and kickbacks were the sector); (public 115 Procter & Gamble cases,” [pre-McNally] constituting Co., Supp., (private 47 F. at 678 sec overwhelming majority pros “[t]he tor). See also United States v. Ors fraud.”). ecutions for honest-services (CA7 2008). burn, Both before 543, 525 F.3d 546 McNally and after history, view of this there is no enactment, Appeals 1346’s Courts of § Congress doubt intended involving described schemes bribes or 1346 to reach at least bribes and § kickbacks as “core . . . honest services Reading pro kickbacks. the statute to precedents,” fraud United States v. range scribe a wider duct, of offensive con (CA1 Czubinski, 1069, 106 F.3d 1077 acknowledge, we would raise 1997); case[s],” “paradigm United process underlying the due concerns 1324, deVegter, States v. 198 F.3d vagueness preserve the the doctrine.42To (CA11 1999); “[t]he 1327-1328 most obvious form of honest services fraud,” Carbo, United States v. 572 (CA3 112, 2009); F.3d conduct covered 115 “core mis transgressing statute without statute,” limitations, constitutional we now Urciuoli, United States v. 513 F.3d only hold that bribe-and-kickback core of the 1346 criminalizes § (CA1 290, 2008); [of the] 294 “most pre- cases,” honest services v. United States McNally case law.43 (CA7 Sorich, 702, 523 F.3d 2008); “typical,” United States v. (CA8 Brown, 364, 1976); 540 F.2d
“clear-cut,”
Mandel,
urges
go
United States v.
The Government
us to
Apprised
reading
impermissibly
that a broader
of 1346 could render the statute
§
believe,
line,
now,
vague, Congress, we
would have drawn the honest-services
as we do
413, 427,
Inc.,
bribery
at
and kickback
schemes. Cf.
v.
Energy,
Levin
Commerce
(2010)
(
2323,
2d 1131
S. Ct.
L. Ed.
may attempt...
implement
“[C]ourts
what
legislature
apprised
infirmity.”);
would have willed had it been
of the constitutional
United
(2005) (“We
Booker,
220, 246,
738,
States v.
543 U.S.
125 S. Ct.
further
within
1346’s backs—and
more—satisfies
§
Congress’ undoubted aim to reverse
compass
category
pro-
another
McNally on its facts.
scribed conduct: “undisclosed self-
dealing by public
private
a
official or
persuaded
pre-
Nor are we
that the
employee—i.e.,
taking
of official McNally conflict-of-interest cases con-
by
employee
action
that furthers
applications
stitute core
of the honest-
his own undisclosed financial inter-
Although
services
doctrine.
purporting
ests while
to act
Appeals upheld
Courts of
honest-
interests of those to whom he owes a
services
convictions
for
“some
fiduciary duty.” Brief
for United
schemes of non-disclosure and con-
“[T]he
States 43-44.
information,”
cealment of material
U.S.
Mandel,
F.2d,
1361,
591
at
theory of liabil-
reached no consensus on which
ity McNally itself was nondisclo-
qualified.
light
schemes
of the rela-
conflicting
sure of a
est,”
financial inter-
infrequency
tive
prosecutions
of conflict-of-interest
observes,
the Government
comparison
bribery
“Congress clearly intended to revive
charges,
and kickback
and the inter-
theory.”
th[at] nondisclosure
at
they produced,
circuit inconsistencies
Moreover, “[although
not as nu- we conclude that a reasonable limit-
bribery
merous as the
cases,”
and kickback ing construction of 1346 must ex-
§
asserts,
the Government
“the
amorphous category
clude this
pre-McNally
involving
cases
undis-
cases.
self-dealing
closed
were abundant.”
dispelling
Further
doubt on this
Ibid.
point
principle
is the familiar
“ambiguity concerning the ambit of
Neither of these contentions with-
criminal statutes should be resolved
inspection. McNally,
stands close
as
Cleveland,
lenity.”
favor of
observed,
already
supra,
we have
at
U.S.,
25,
365,
at
S. Ct.
148 L. Ed.
401-402, 407,
2d,
656,
177 L. Ed.
at
221 (quoting
2d
Rewis v. United
659,
involved a classic kickback
States,
401 U.S.
official,
A
public
exchange
scheme:
routing Kentucky’s
insurance
through
business
a middleman com-
91 S. Ct.
(1971)).
pany, arranged
company
for that
no other misconduct falls within province. 1346’s See United States v. § Lanier, (1997) ( Interpreted encompass only “[C]larity requisite may at the level be schemes, bribery and kickback § supplied by judicial gloss on an other unconstitutionally vague. is not Re statute.”). wise uncertain void-for-vagueness call that the doc (1) trine addresses concerns about notice and fair arbitrary prosecutions, As to we (2) arbitrary and discrimi perceive significant no risk that Kolender, natory prosecutions. See statute, honest-services as we inter- U.S., 75 L. pret today, it will be stretched out of A prohibition Ed. 2d 903. on fraudu shape. prohibition Its on bribes and lently depriving another of one’s hon only kickbacks draws content not by accepting est services bribes or law, pre-MсNally from the case but present problem kickbacks does not proscrib- also from federal statutes on either score. Congress up enterprise criminalizing self-dealing by 44. If were to take “undisclosed public private employee,’’ employ official or Brief for United States it would have to standards specificity process of sufficient definiteness to overcome due concerns. The Government proposes prohibits ‘taking employee a standard that of official action that furthers his purporting own undisclosed financial interests while to act in the interests of those to whom he fiduciary duty,’’ long employee specific owes a so as the acts with a intent to deceive and the id., change undisclosed conduct could influence the victim to its behavior. at 43-44. See also formulation, however, many questions signifi- at 40-41. That leaves unanswered. How direct or conflicting cant does the financial interest have to be? To what extent does the official action have made, to further interest in order to amount to fraud? To whom should the disclosure be convey? questions particular what information should it These and others call for care in attempting adequate prohibition to formulate an criminal in this context. not, ing—and defining—similar any crimes. The Government did See, 201(b), e.g., 18 U.S.C. time, §§ allege solicited or *40 52(2) (“The 666(a)(2); 41 U.S.C. § accepted payments side from a third fee, any money, term ‘kickback’means in party exchange making for these commission, credit, gift, gratuity, misrepresentations. See Record value, thing compensation any of or of (May 2006 Letter from the provided, directly kind which is or Court) Government (“[T]he to the District indirectly, persons] [enumerated allege, indictment does not purpose improperly for the obtain government’s and the evidence did ing rewarding or favorable show, in [Skilling] engaged not [561 413] U.S. that, bribery.”). It is therefore clear as treatment 1346, Skilling we read did not com- § [enumerated connection with circ mit honest-services fraud. umstances].”).45 also, e.g., See United Ganim, States v. 510 F.3d 147- alleged Because the indictment (CA2 2007) J.) (re (Sotomayor, objects conspiracy— three in viewing honest-services conviction fraud, money-or- honest-services wire volving bribery light of elements of fraud, property wire and securities statutes); bribery under other federal fraud—Skilling’s conviction is flawed. Whitfield, United States v. 590 F.3d States, See Yates v. United 354 U.S. (CA5 2009); 352-353 United 298, 1064, 1 L. Ed. 2d 1356 Kemp, States v. 500 F.3d 281-286 (1957) ( constitutional error occurs (CA32007). A criminal defendant who when a is instructed on alterna participated bribery or kickback guilt tive theories of general and returns a scheme, short, tenably cannot com may verdict that rest on a plain prosecution about under § legally nation, however, theory). invalid This determi vagueness grounds. on necessarily does not C require conspiracy reversal of the con viction; confirmed, recently
It remains to determine whether we Pulido, Skilling’s Skilling’s Hedgpeth conduct violated 1346. v. § (2008) prosecution, honest-services S. Ct. (per concedes, curiam), the Government “prototypical.” was not that errors of the Yates subject variety Brief for United States are to harmless-error charged Skilling analysis. parties vigorously 49. The Government The dis conspiring pute with to defraud Enron’s whether the error was harmless. by misrepresenting Compare shareholders company’s Brief for United States 52 health, thereby (“[A]nyjuror fiscal arti- who voted for conviction ficially inflating price. theory] [the its stock It was based on honest-services theory [Skilling] the Government’s at trial that also would have found Skilling “profited guilty conspiring from the fraudulent to commit securi fraud.”) (The through receipt Reply scheme . . . salary ties with Brief 30 bonuses, through . . . and Government “cannot show that conspiracy mil- approximately only the sale of conviction rested on $200 stock, him theory, lion Enron which netted the securities-fraud rather distinct, legally-flawed million.” at 51. than $89 Overlap superfluous. principal with other federal statutes does not render The § statute, officials, bribery example, generally applies only public federal to federal so § application corruption private-sector 1346’s to state and local and to fraud reaches misconduct § might go unpunished. otherwise theory.”). may honest-services We leave on it. That court do so on re- dispute this for resolution on rem mand.
and.46 potential Whether reversal on the
conspiracy any count touches of Skill- ing’s open other convictions is also an convictions, All question. of his Skill- reasons, foregoing For the we affirm contends,
ing hinged on the con- ruling Skilling’s the Fifth Circuit’s on and, dominoes, spiracy count like argument, ruling fair-trial vacate its Court, if must fall it falls. The District conviction, conspiracy on his and re- deciding Skilling’s motion for bail *41 proceedings mand the case for consis- pending appeal, argument found this opinion. tent with this dubious, Fifth Circuit had no occasion to rule 1141a-1142a, App. but the
It is so ordered.
SEPARATE OPINIONS
(internal
Scalia,
quota
Justice
with whom Justice
at 659
omitted).
joins,
Thomas
tice
and with whom Jus-
in
tion marks
forming
But
trans
Kennedy joins except
as to Part
prohibition
the
of “honest-
III,
in
concurring
part
concurring
prohibition
services fraud” into a
of
judgment.
the
“bribery
wielding
and kickbacks” it is
power
long ago abjured:
we
I agree
peti-
with the Court that
power to define new federal crimes.
Jeffrey Skilling’s challenge
tioner
the
to
Hudson,
See United States v.
7
impartiality
of his
and to the
(1812).
32, 34,
Cranch
Investigation
meaning
public
into the
of who had no role
see,
Lemire,
pre-McNally
e.g.,
“the
trine”
honest-services doc-
United States v.
(CADC
might
logically begin
with
720 F.2d
1335-1336
itself,
1983);
Barta,
McNally
rejected
which
it. That
United States v. Von
(CA2 1980).
repudiated
many
case
the
Court of 635 F.2d
Moreover,
say
“to
that a man is a
Appeals holdings
expanded
the mail-
that had
meaning
fiduciary only begins
analysis;
[the]
of “fraud”
in
beyond
gives
fraud and wire-fraud statutes
it
direction to further
deceptive
property. quiry.
obligations
schemes to obtain
. . . What
does he
fiduciary?”
Chenery ily
puts
impri
“[l]aw
owe as a
Corp.,
SEC v.
declared that
its
80, 85-86,
accepted
63 S. Ct. matur on the
moral stan
(1943).
454,
This
does not
breach of
was needed
if
pear
pre-
one assumes that
the
to establish honest-services
fraud.
federal, Seе,
Barta,
McNally
developed
e.g.,
supra,
cases
Von
at 1006
cases);
fiduciary duty;
duty (collecting
common-law
United States v.
(CA7 1973).
508,
hopelessly
George,
remained
undefined. Some
477 F.2d
was,
in astoundingly
unsurprisingly,
courts described it
There
some dis
that,
in
language. Blachly
pute
text of acts
broad
States,
v. United
about
at least
the con
(CA5
1967),
by persons owing
referred to
and kick-
“paradigm”
Among
back schemes as “core” or
trine itself is much more.
all
“typical” examples,
pre-McNally smorgasbord
“[t]he
or
or
most
the
ings
offer-
form,”
obvious
of honest-services
of varieties of
fraud, ante,
2d,
177 L. Ed.
at
(internal quotation
marks omit-
honest-services
ted), and since two cases and counsel
fraud,
bribery
not one is limited to
say
they
for the Government
that
and kickbacks. That
is a dish the
majority,”
formed the “vast
or “most”
up
Court has cooked
all on its own.
“[t]he
or at
least
bulk” of honest-
Thus,
“respec[t]
the Court’s claim to
cases, ante,
services
(internal
ante,
legislature,”
n.
2d,
quota-
L. Ed.
at 659-660
2d,
(emphasis
177 L. Ed.
at 660-661
omitted),
tion marks
THEREFORE it
deleted),
(as
entirely
is false. It is
clear
must be the case that
Congress
are all
I agree)
the Court and
that Con-
meant
its reference to
gress
body
meant to reinstate the
the honest-services doctrine.
law;
pre-McNally honest-services
if
Even
that conclusion followed entirely
prohibited
clear that
premises,
from its
it would not suffice
(though precisely
much more
more is
what
vagueness
to eliminate the
of the stat-
uncertain)
bribery
than
(perhaps)
ute. It would solve
the inde-
Perhaps
kickbacks.
it
is true that
terminacy of what acts constitute a “Congress intended
1346 to reach at
§
obliga-
breach of the “honest services”
kickbacks,” ante,
least bribes and
pre-McNally
tion under the
it would not solve the most fundamen-
law. But 408,
2d,
at 660. That sim-
mean,
ply does not
as the Court now
indeterminacy:
tal
the character of holds,
only”
1346 criminalizes
Ҥ
“fiduciary capacity”
to which the
kickbacks, ante,
bribery and
bribery
ap-
and kickback restriction
at 660.
plies.
apply only
public
Does it
private
Arriving
requires
officials? Or
addition to
at that conclusion
interpretation
individuals who contract with the not
public?
but invention. The
everyone, including
replaces vague
Or to
the Court
criminal stan-
corporate
pre-
Congress adopted
officer here? The
dard that
with a
*45
(included
McNally
provide
case law does not
an more narrow one
within the
one)
Thus,
bribery vague
pass
answer.
even with the
that can
constitu-
I
precedent
and kickback limitation the statute
tional muster. know of no
down,”3
2d,
658-659,
“paring
for such
and it seems
at
states that “when the
clearly beyond judicial power. constitutionality
to me
of a statute is as
not,
claims, ante,
sailed, if
reasonably
This is
as the Court
the statute be
406,
2d,
659, simply
susceptible
interpretations, by
at
177 L. Ed.
at
a
of two
adopting
“limiting
matter of
con- one of which it would be unconstitu
valid,
potential
by
struction”
the face of
tional and
the other
it is our
unconstitutionality.
plain duty
adopt
that construction
which will save the statute from con
U.S.
infirmity.”
stitutional
United States ex
that,
To do
our
Attorney
rel.
General v. Delaware &
note,
cases have been careful to
Co.,
366, 407,
Hudson
213 U.S.
29 S.
narrowing
“fairly possible,”
construction must be
527,
(1909);
Ct.
relies,
ante,
405-406,
right
see
with the stroke of our
only alleged precedent
3. The
the Court dares to describe is Civil Service Comm’n v. Letter
(1973).
Carriers,
548,
2880,
provision
413 U.S.
93 S. Ct.
Ill
mined, is, whether we can intro-
A
appropriate
brief word about the
pe-
duce words of limitation into a
I
remedy.
supra,
As noted
specific,
nal statute so as to make it
665, Skilling
argued
L. Ed.
has
when,
expressed,
general
as
it is
constitutionally
1346 cannot be
§
only.
him
applied to
because it affords no
certainly
dangerous
“It would
be
right
depriva
definition of the
whose
if
large enough
legislature
the
could set a net
prohibits. Though
tion it
ing
this reason
possible
to catch all
categorical,
is
it does not make
offenders, and leave it to the courts
one, in
Skilling’s challenge a “facial”
step
say
to
rightfully
inside and
who could be
the sense that it seeks invalidation of
detained,
and who should
in
applications,
the statute
all its
as
would,
large.
be set at
This
to some
opposed preventing
its enforcement
extent,
judicial
substitute the
I
against him.
continue to doubt
legislative deрartment
of the
“striking
whether
down” a statute is
government. . . .
appropriate
ever an
exercise of our
III power.
Chicago
Article
See
v. Mo
“Tolimit this statute
the man-
rales,
ner now asked for would be to make
(1999) (Scalia, J.,
law,
a new
not to enforce an old one.
case,
In
dissenting).
present
part
duty.”
This is no
of our
universality
identifies
infirmity Skilling
Alito,
concurring
part
Justice
if
may
mean that
§
concurring
judgment.
wins, anyone
prosecuted
he
else
un
well,
der the statute will win as
see
I join
judgment
of the Court and
Smith,
576-578,
supra, at
II
I
opinion.
all but Part
of the Court’s
Florida,
794, 800-801, 803,
421 U.S.
ana,
373 U.S.
83 S. Ct.
2031, 44
95 S. Ct.
L. Ed. 2d 589
(1963). I
L. Ed. 2d 663
do not read
(1975); see also Rivera v.
demanding petitioner’s
those cases as
suggested approach. As the Court
U.S.
Illinois,
notes, Sheppard
primarily
and Estes
148, 157-159,
129 S. Ct.
“involved media interference with
(2009);
proceedings during
Justice with whom Court’s selection The Breyer Justice Stevens and Justice failure of Enron wounded Houston join, concurring part deeply. Virtually overnight, and dissent- what had visible, ing part. city’s “largest, been thе most prosperous company,” and most its I concur the Court’s resolution of force,” “foremost social and charitable *48 question the honest-services fraud pride” and “a source of civic was re- III I join opinion. and Part of its App. duced to a “shattered shell.” dissent, however, respectfully from ¶¶11, 13, 649a-650a, pp. 1152a. Jeffrey the Court’s conclusion that company’s employ- Thousands of the Skilling received a fair trial before an jobs ees lost their and saw their re- impartial jury. Under our relevant savings tirement vanish. As the ef- precedents, pub- the more intense the rippled through fects the local defendant, antipathy lic’s the more careful a court must be to prevent toward a economy, jobs thousands of additional shuttered, disappeared, businesses tainting that sentiment from community groups and that once ben- case, jury. passions the this ran largesse efited from Enron’s felt the extremely high. of Enron collapse The sudden in loss of millions of dollars contribu- directly affected thousands See, e.g., Supp. tions. Record in people of the Houston area and (CA5 1267; see also 554 F.3d community. shocked the entire The 2009) (“Accounting firms that ser- accompanying barrage of local media work, viced Enron’s books had less coverage was massive volume and rooms, open hotels had more restau- often caustic tone. As Enron’s one- on”). meals, rants sold fewer and so (CEO), time chief executive officer community Enron’s ties were so ex- Skilling was at the center of the tensive that the entire local U. S. if extraordinary storm. Even these Attorney’s Officewas forced to recuse circumstances did not constitution- ally compel itself from the Government’s investi- gation venue, change a of company’s into the fall. See 3 required the District Court to conduct (official Supp. press Record 608 re- thorough prospec- a voir dire which lease). jurors’ tive attitudes about the case affecting With Enron’s demise closely were scrutinized. The District Houstonians, many lives of so local inquiry necessary Court’s lacked the coverage story media saturated thoroughness and left serious doubts community. According to a de- jury empaneled about whether the expert, fense media the Houston Skilling’s capable decide case was of leading Chronicle—the area’s news- rendering impartial an decision based paper—assigned porters many as as re- solely presented on the evidence story to work on the Enron I Accordingly, the courtroom. would App. paper full time. 568a-569a. The grant Skilling relief on his fair-trial 4,000 mentioned Enron more than articles claim. during 3-year period fol-
lowing company’s December 2001 bankruptcy filing. Hundreds of these Skilling by articles discussed See 3 expert, name. I Supp. Skilling’s Record 2114. majority professional journalist The understates depth community years’ experience, breadth and hos- academic with 30 tility toward and overlooks could not “recall another in instance significant paper deficiencies the District where a local dedicated as many single topic juxtaposed pieces resources to a over ecutives were with period expressing sympathy darity such an extended of time as the toward and soli- company’s many Houston Chronicle . . . dedicated to with the vic- ¶32, App. Skilling’s expert Enron.” at 570a. tims. media counted nearly a hundred victim-related sto- Chronicle, including ries Local tele- “multi-page layout entitled ‘The Faces coverage similarly vision news was ” Enron,’ poignantly which de- and, in pervasive terms of “editorial gut-wrenching experi- scribed the theme,” “largely followed the Chroni- employees ences of former who lost Id., 11, 559a; ¶ cle’s lead.” see also money, vast sums of faced eviction id.., May at 717a. Between 2002 and homes, from their could not afford October local stations aired an children, gifts Christmas for their 19,000 in- segments estimated news “scared,” “hurt,” “humiliat[ed],” felt “helpless,” Enron, 1,600 volving more than Id., ¶71, “betrayed.” Skilling. Supp. which mentioned *49 Record 2116. [561 430] U.S. 585a-586a. The conventional wisdom many While of the stories were devastating that blame for Enron’s implosion items, straightforward many news ensuing and the human conveyed amplified others community’s outrage the tragedy ultimately rested with Skill- top at the execu- ing and former Enron Chairman Ken- perceived responsible tives to be Lay deeply ingrained neth in became so A company’s bankruptcy. the popular imagination the that refer- report Skilling’s Chronicle on 2002 ences to their involvement even testimony Congress typical before is “If up sports pages: you turned on the coverage. began, of the Houston, It “Across Bill story [Coach believe the about employees Enron watched having anything Parcells] not to do Jeffrey former chief executive Skill- with the end of Emmitt Smith’s Cow- ing’s congressional testimony on tele- career, boys you probably then believe vision, incredulous, turning angry in concepts. other far-fetched Like turns, by and then sarcastic as a man Skilling having nothing Jeff to do they savvy knew as and detail- collapse.” Supp. with Enron’s Re- pleaded memory oriented failure and cord 811. ignorance about critical financial grand jury When a federal indicted now-collapsed transactions at the en- “ Skilling, Lay, Causey— and Richard ergy giant.” App. lying; 1218a. ‘He is accounting Enron’s former chief cer—in 2004 on offi- everything,’ [an he knew said em- charges conspiracy ployee], who said she had seen Skill- defraud, fraud, to securities and other ing frequently the years over her 18 with crimes, placed the media them di- firm, Skilling where was known rectly their crosshairs. the words grasp for his intimate of the inner article, thing of one “there was one ‘I doings company. getting at the am ” by those whose lives were touched Id., sicker the minute.’ at 1219a. company once-exalted all seemed to A companion piece quoted a local at- agree upon: The indictment of former torney Skilling who called an “idiot” Skilling Enron CEO Jeff was over- denial”; added, “in “I’m who was he App. Scoffing due.” 1393a. at Skill- glad [Skilling’s] my not client.” ing’s attempts ‘victim’ of his paint to himself as “a (internal quotation 592a-593a omitted). marks subordinates,” id.,
1394a, the Chronicle derided “the doo- deriding Articles Enron’s senior ex- Lay Skilling fus defense” that offer, id., expected gan process by were at 1401a.1 selection mail coming ing screening questionnaires The Chronicle referred to the to 400 Skilling/Lay prospective jurors trial as “the main event” November 2005. One,” Big completed questionnaires and “The which would The respondents not excused for hard ship dramatically illustrated finally bring “the true measure of widespread impact collapse of Enron’s justice saga.” the Enron Record community on the Houston and con 40002; 1457a, App. 1460a.2 On the animosity firmed the intense tonians toward of Hous- day superseding indictment and his code issued, charging Lay was “the fendants. More than one-third of the three-quarters Chronicle dedicated prospective jurors (approximately 99 page, pages, its front other full count) 283, by my indicated that portions pages, substantial of other they sections, inall the front or business Id., ¶57, story.” th[e] at 580a-581a. persons they or knew had lost Citing widely felt sense of vic- money jobs or as a result of the Enron among timhood Houstonians and the bankruptcy. jurors Two-thirds of the publicity,
voluminous adverse Skill- (about 283) expressed 188 of views ing moved November 2004 for a about Enron or the defendants that suggested change of venue.3 The District Court potential predisposition motion, characterizing denied the media and unemotional.” instances, In many to convict. coverage largely “objective as words, describing did not mince Skill App. to Brief for dire, “brash,” ing “smug,” “arrogant,” United States 11a. Voir it con- as *50 cluded, means to “ferret out provide would an effective “conceited,” “deceitful,” “greedy,” “to any bias” criminal,” tally unethical and “a Id., 18a; ante, jury pool. see crook,” biggest “the liar on the face of аt 636. earth,” “guilty (capi the talization and as sin” omitted).4 Only about 5 end, To that the District Court be- App. (describing noting prosecutors 1. See also 735a Enron as “hardball fraud’’ and that “Enron approached organized investigation corporate have the case more like an crime than a fraud fraud, prosecution,’’ given pervasiveness corruption [that] a “tactic makes sense’’ “the sheer of and id., success, self-dealing’’); (“Lay proudly Skilling at 1403a stood in front of Enron’s facade of while Fastow, prot[ege], ginned up increasingly [Andrew] and his own convoluted mechanisms for knew’’); concealing reality. particulars, yes, Lay the financial ... A court will decide the but Ken id., 1406a, (describing collapse criticizing 1409a Enron’s as “failure as a result of fraud’’ and Skilling using “bolting just [as] for “vitriol a smokescreen’’ and for the door’’ before Enron’s stock price plummeted); Supp. (discussing Skilling Lay granddaddy Record 1711 the role of and in “the frauds’’). corporate of all According Skilling’s expert, “adopted 2. to media local television stations these same themes’’ through repeated imagery replaying footage “dr[o]ve and them home such vivid and visual as ¶65, Skilling’s ‘perp Skilling’s upcoming discussed.’’App. [we]re . . . walk’when details about trial During arraignment, at 584a. news outlets “followed each man as he drove from his home to FBI court, home, headquarters, providing commentary—such to the and back often ‘color’ as inter- Id., ¶60, viewing employees day’s former Enron for comment on the events.’’ at 581a. motion, Reporting change-of-venue Skilling “desperate 3. on the the Chronicle described as a defendant,’’ opined change may and the Austin American-Statesman that while a of venue make legal perspective,’’ standpoint pure justice, wealthy “[f]rom sense “from the executives Id., really judged right should be where their economic hurricane struck with the most force.’’ 748a, 747a. (“Ken See, e.g., Lay guilty get ought go jail”; 4. Juror 1 and the others are as all out and to “[b]rash, [c]onceited”; Skilling [a]rrogant morally people [and] is “I find it awful that these are still (“Mr. loose”); earth”); running Skilling biggest Juror 70 is the liar on the face of the Juror 163 (15 A percent prospective jurors front-page of and television stories. 283) proclaimed did not read the Houston headline the Chronicle Chronicle, “Causey’s plea had not otherwise “heard that wreaks havoc for cases,” 13; any Lay, Skilling.” or read about of the Enron Record n. ibid, (quoting Record were not connected to see also a former U. S. victims, gave attorney plea Enron and no answers who described the as “a defense”). A suggesting possible antipathy toward serious blow to the parties jointly opined the defendants.5 The Chronicle editorial ey’s that “Caus stipulated to the dismissal admission of securities fraud . . . plausible Lay’s makes less claim that guilty most of the Of119 cause, jury pool members of the for
hardship, disability, pleas or but numerous were the prosecutorial pressure individuals who had made harsh com- result of rather wrongdoing.” ments about remained.6 than actual 28, 2005, shortly On December af- questionnaires quickly ap-
ter the had been re- With the trial date turned, Causey pleaded guilty. proaching, Skilling The renewed his motion, plea newspaper change-of-venue arguing was covered lead (“I cause’’); (Skilling [Skilling] “would lie to his mother if it would further his Juror 185 think was crook’’); arrogant (Skilling “[s]killful [l]iar [and] and a Juror 200 is a crook’’ who did “a lot of the work’’; blind, deaf, dirty stupid [and] the defendants would “have to be to be unaware of what was deleted)); criminal’’; happening’’ (emphasis (Skilling “[t]otally Juror 206 is unethical guilty having beg [and] defendants “are all and should be reduced to on the corner live under a now’’); “initiated, bridge’’); (“They guilty (Skilling Juror 238 are all as sin—come on Juror 299 actions’’); designed, illegal (Lay up’ [and] authorized certain Juror 314 “should ‘fess and take his man’’; punishment goes Jeffrey Skilling. family “[t]he like a same . . . He and his . . . should be stripped just [and] of all of their assets made to start over like the thousands he made start all over’’); (Skilling “[s]mug,’’ “[g]reedy,’’ “[d]isingenu[ous]’’; Juror 377 is hе “had an active hand in fraud’’). Venue, Record, creating sustaining Change Defendants’ Renewed Motion for Doc. (Sealed Exhs.) (hereinafter Motion); Skilling’s App. Renewed Venue see also 794a-797a (summarizing responses). additional (about 283) percent they 5. Another 20 59 of indicated that read the Chronicle or had otherwise report heard about the Enron cases but did not were victims or make comments *51 suggesting possible against bias the defendants. See, man’’); e.g., (Skilling (Skilling “[n]ot 6. Juror 29 is an honest Juror 104 “knows more than (“I (“So admitting’’); wrong doings’’); many he’s Juror 211 believe he was involved in Juror 219 team’’; people savings dishonesty lost their life because of the of some members of the executive (“With Skilling aggressive accounting’’); power, “[t]oo w[ith] was Juror 234 his level of control and responsible way’’); (Skilling hard to believe that he was unaware and not in some Juror 240 (“[T]housands on’’); very goings people “[s]eems to be much involved in criminal Juror 255 of were Enron’’; advantage by Skilling “arrogant”; “Skilling taken of executives at is was Andrew Fastow’s superior. plead[ed] guilty felony charges. Skilling immediate Fastow has to I believe was aware of (“Nice behavior”); illegal try resigning collaps[e], Fastow’s Juror 263 6 months before the but on”); again, going (Skilling getting “[k]new he had to know what was Juror 272 he was out before [b]roke”); down”); (Skilling going [d]am “[b]ailed the Juror 292 out when he knew Enron was Juror (“[H]ow they they lying things”); (“They could not know and seem to be about some Juror 328 (“I responsible company happened”); should be held as officers of this for what Juror 350 believe result”; greatly power they he misused his and affected hundreds of lives as a “I believe are all well”); guilty. ‘doings’ only employed by many Their affected not those Enron but others as Juror (“I trying seem to remember him to claim to have mental or emotional issues that would any guilt. though big player remove him from I think that is deceitful. It seems as he is a in the (“I downfall”); knew, CEO, certainly illegal Juror 378 believe he and should have known as the that Enron”; instrumental, improper rampant [activities] and were in “I believe all of them were and Enron”). co-conspirators, perpetrated Skilling’s were in the massive fraud Renewed Venue Motion. questionnaire responses agree delay both the and The court did the trial weeks, by January two until 2006. Causey guilty plea the confirmed that in he could not receive a fair trial alternative, Skilling Houston. coming promi- The trial featured asserted that “defendants are entitled in A nently local news outlets. front- thorough jury pro- page, story to a more selection eve-of-trial Chronicle described “the hurt and an- currently by cess than envisioned ger and resentment” that had been Id., [c]ourt.” at 12067. The court had [ing] “churn inside” Houstonians since question announced its intention to Id., collapse. Enron’s at 39946. jurors individual at the bench with Again criticizing Lay Skilling and attorney present, one for each side (“a offering plea a “doofus defense” complete and to the voir dire a guilty by empty- not reason of See, id., single day. e.g., at 11804- headedness”), paper stated that Skilling proposed, inter “Lay Skilling and took hundreds of alia, that defense counsel be afforded in compensation yet millions now fail id.., greater questioning, role accept responsibility that went 12074; jurors questioned pri- that be with it.” Ibid. The article allowed that vately in camera or a closed court- guilt, “though per- the defendants’ room where it would be easier for assumed, haps widely remains even counsel to consult with their col- Ajury up now an assertion. now takes clients, consultants, leagues, id., jury deciding the task of whether that as- 12070-12072; and that Id., sertion is valid.” at 39947. The leading questions,” court “avoid which however, paragraph, next assured responses [e] “tend to licit affirmative your readers that “it’snormal for skin prospective jurors may from that not Lay to crawl when or claim views,” id., reflect their actual doe-eyed with innocence that minimum, Skilling 12072. At a as- something were unaware that was serted, grant the court should a con- company’s amiss at Enron. The utter days tinuance of at leаst 30 and send Ibid, (one failure belies the claim.” questionnaire a revised to a new omitted); paragraph break see also group prospective jurors. Id., id., (declaring Lay at 39904 12074-12075. Skilling would “have to offer a con- vincing explanation for how execu- Skilling’s The District Court denied corporate ge- tives once touted as hearing, stating motion without a niuses could be so much the dark persuaded brief order that it was “not illegal decep- about the activities and arguments urged that the evidence or company”). tive finances of their own pre defendants . . . establish that publicity community trial prejudice and/or against backdrop It is this of wide- in presumption raise a spread community impact sive perva- jury prejudice.” herent According at 14115. pretrial publicity selec- *52 court, “jury ques to the in Skilling’s tion case unfolded. remaining tionnaires sent to the Approximately prospective jurors jury panel members of the and the appeared for voir dire at a federal court’s voir dire examination of the courthouse located “about six blocks jury panel provide adequate safe headquarters.” from Enron’s former guards to defendants and will result F.3d, Addressing 554 a at 561. them as impartial the selection of a fair and group, began by the District Court Id., jury this case.” at 14115-14116. briefly describing provid- the case and ing up a standard admonition about the follow on issues raised impartial need to be fair and and to clear, however, court. The court made solely decide the case based on the limited, patience that its would be jury trial evidence and instructions. id., see, 879a, e.g., questioning and anyone The court then asked whether brief—generally tended to be less “any your had reservations about per person. than five minutes Even ability conscientiously fairly to and so, exposed disqualifying it biases very important follow these rules.” among prospective jurors several who App. 815a. Two individuals raised expressed had earlier no concerns their hands and were called forward ability about their to be fair.7 to the bench. One told the court that qualified pro- Once it identified 38 thought Lay he “knew spective jurors, the court allowed the exactly they doing” what were and defense and Government to exercise prove would have to their innocence. peremptory challenges. their allotted Id., juror, at 818a-819a. The second alternates, jurors This left ques- who had stated on his written instructed, who were sworn for opinion tionnaire that he held no that time, anything [to] the first “not read him im- preclude being would from dealing any with this case or listen to partial, declared that he “would discussion of the case on radio or I dearly jury. love to sit on this would any television or access that Internet sites responsibility, love to claim at least may deal with the case” and to responsibility, putting 1/12 of the your family “inform friends and mem- away these sons of bitches for the rest they bers that should not discuss with Id., of their lives.” at 819a-820a. The you anything they may have read or jurors court excused both for cause. Id., heard about this case.” at 1026a. finish, process Start to the selection in- proceeded question The court took about five hours. jurors dividual majority from the bench. As the recounts, ante, 373-374, Skilling’s trial commenced the next the court day and lasted four months. After general yes/no ques- asked them a few deliberations, days jury several exposure tions about their to Enron- Skilling guilty conspiracy, found news, of, related often variations “Do fraud, counts of securities 5 counts of you any particular recall articles that making representations false to audi- you’ve stand out that read about the tors, trading; and count of insider it App. case?” 850a. The court also asked acquitted trading on 9 insider counts. questionnaire about suggested answers that Lay guilty The found on all bias, focusing mainly on counts. whether, notwithstanding seemingly comments,
partial
prospective ju-
appeal, Skilling
On
asserted thаt
they
rors believed
“put
“could be fair” and he had been denied his constitutional
government
proof.”
right
impartial
to its
to a fair trial before an
claim,
permitted
jury. Addressing
at 852a. Counsel were
this
the Court
(Juror 43)
App.
(expressed
money’’
7. See
894a
the view that
the defendants “stole
from their
(Juror 55) (admitted
id.,
employees);
prejudging’’
“lean[ed]
at 922a
she
towards
(Juror 71) (stated
defendants);
id.,
place
proof
at 946a
that she would
the burden of
on the
(Juror 75) (indicated
defendants);
id., at 954a-960a
that she could not set aside her view that there
(Juror 104) (stated
Enron);
id.,
questioned
was fraud at
at 1003a-1006a
that she
the defendants’
very upset
government
prove
innocence and that she “would be
with the
if
could not
their
(Juror 112)
case’’); id.,
(expressed
guilty).
at 1008a
the view that
the defendants were
*53
II
Appeals began by disavowing
of
the
findings concerning
District Court’s
right
The Sixth Amendment
to an
was,
“community hostility.” There
impartial
jury
process
and the due
concluded,
court
“sufficient inflamma-
right
fundamentally
to a
fair trial
tory pretrial
require
material
to
guarantee to criminal defendants a
finding
presumed prejudice, espe-
of
jurors
precon-
trial which
set aside
cially
light of the immense volume
in-
ceptions, disregard extrajudicial
F.3d,
coverage.”
of
at 559.
fluences,
guilt
and decide
or inno-
“[Prejudice
[also]
was
inherent
an
alleged
co-conspirator’s
well- cence
“based on the
evidence
publicized
plead guilty
decision to
on
Dowd,
presented
court.” Irvin v.
the eve of trial.” Ibid. The Court of
717, 723,
366 U.S.
6 L.
moreover,
Appeals,
faulted the Dis-
(1961);
Sheppard
Ed. 2d 751
see also
failing
trict Court for
to “consider the Maxwell,
333, 362,
v.
384 U.S.
86 S.
Id.,
“[I]t
wider context.”
at 560.
was
(1966).
Ct.
government
[had] met its burden of
Our decisions instead
showing
merely convey
that the actual
that con-
the commonsense un-
id.,
impartial,”
derstanding
public
victed
was
that as the tide of
basis,
rises,
enmity
danger
564-565. On this
the Court of
so too does the
prejudices
community
that the
Appeals rejected Skilling’s claim and
jury.
underlying
affirmed his convictions.
will infiltrate the
The
*54
LaFave,
Israel,
Kerr,
question
always
King,
has
been this: Do we
J.
N.
& O.
jury’s
have confidence that the
verdict
23.2(a), p.
Criminal Procedure
(3d
264
§
2007) (hereinafter LaFave)
only by
was “induced
evidence and
ed.
(“Thе
court,
argument
open
and not
reading
best
influence,
any
pri-
outside
whether of
public print”?
vate talk or
Patterson v.
of Rideau is that
Attorney
Colorado ex rel.
Colo.,
General recognized
preju-
the Court there
that
454, 462,
556,
205 U.S.
27 S. Ct.
publicity may
dicial
be so inflamma-
(1907).
Ed. 2d 543. It would have been diffi-
spectrum,
jurors
At one end of the
this
cult for the
swayed,
not to have been
has,
occasion,
subconsciously, by
Court
on rare
con
at least
inherently prejudicial
fronted such
the “bedlam” that surrounded them.
U.S.,
Sheppard,
circumstances that it has reversed a
defendant’s conviction “without
86 S. Ct.
paus
Criticizing
to the level of with the and con- executives, pretrial publicity community ani- victions of other Enron no seating jurors suggested guilt by mus to ensure the capable of doubt аssociation. presuming exposed innocence and But reasonable minds to such shutting extrajudicial out influences? information
A
necessarily
would not
close, I
Though
question
impression
is
have formed an indelible
agree
pros-
guilty
with the Court that
himself was
as
Rideau,
U.S.,
in
pect
seating
charged.
an unbiased
Cf.
(a
Houston was not so remote as to com- 83 S. Ct.
pel
majority
county’s
the conclusion that
the District
of the
residents
in
unconstitutionally
“exposed repeatedly
Court acted
de- were
nying Skilling’s
change depth
spectacle
per-
motion to
to the
of Rideau
sonally confessing
venue. Three considerations lead me
detail
to the
First,
to this conclusion.
as the Court
crimes with which he was later to be
charged”).
observes, ante,
Third,
sugges-
there is no
diversity
the size and
community
tion that the courtroom this case
became,
prob-
Sheppard,
the Houston
make it
as
Estes and
jury pool
able that
contained a
“carnival” which the “calmness and
persons
solemnity”
compromised. Sheppard,
358, 350,
proceedings
nontrivial number of
who
were
U.S.,
collapse,
were unaffected
Enron’s
outlook,
unlikely
neutral
their
16 L. Ed. 2d
*58
(internal
swept up
public
quotation
to be
the
furor. 600
marks omit-
ted).
Second,
case,
coverage
appropriate
media
of the
It is thus
to examine
ubiquitous
while
and often inflamma-
the voir dire and determine whether
not,
out,
tory,
points
impartial-
did
as the Court
it instills confidence
ity
the
ante,
382-383,
2d,
jury actually
at
177 L. Ed.
at
of the
selected.9
declining
change
pursuant
9. Whether the District Court abused its discretion in
to
venue
to the
21(a)
question.
Federal Rules of Criminal Procedure is a different
See Fed. Rule Crim. Proc.
motion,
(“Upon
proceeding against
the defendant’s
the court must
transfer
the
that defendant
to
great
prejudice against
another district
if the court is satisfied that so
a
the defendant exists in the
there’’).
transferring
impartial
district
that
the defendant cannot obtain a fair and
trial
As this
indicated,
supervisory powers
Court has
its
confer “more latitude’’ to set standards
for the conduct
415, 424,
Virginia,
of trials in federal courts than in state courts. Mu’Min v.
500 U.S.
111 S. Ct.
(1991).
1899,
may
constitutionally
compel
change
683 B (“ adequate ‘Without an voir dire the In concluding that the voir dire “ad- judge’s responsibility trial to remove equately ju- detected] defuse[d] prospective jurors who will not be bias,” ante, ror impartially able to follow the court’s downplays the Court instructions and evaluate the evi- ” (quoting dence cannot be fulfilled’ U.S. ex- States, Rosales-Lopez v. United 451 community’s antipathy tent of the to- 68 L. (1981) Skilling exaggerates ward (plurality opinion))); 500 Ed. 2d rigor process. selection The Mu’Min, U.S., 451, 111 see also (Ken- devastating impact of Enron’s col- 1899, 114 S. Ct. L. Ed. 2d 493 (“Our lapse and the relentless media cover- J., nedy, to accord substantial deference to a dissenting) willingness age exceptional demanded care on the
part of the District Court to ensure finding juror impartial- trial court’s seating impartial jury. of an While ity expectation rests on our that the procedures employed by the trict Court in the Dis- trial court will conduct a sufficient voir dire to determine the might adequate have been credibility ). case, typical high-profile juror professing impartial” of a to be extraordinary did not suffice circumstances of this case to safe-
guard Skilling’s right constitutional impartial jury. to a fair trial before an Appeals appre- As the Court of I conducting analysis, this am hended, gave the District Court short mindful of the “wide discretion” owed shrift to the mountainous evidence of jury- to trial courts when it comes to Houstonians, En- public hostility. For Mu’Min, U.S., related issues. 427, 493; collapse ron’s was an event of once-in- S. Ct. L. Ed. 2d a-generation proportions. only Not ante, cf. coverage was the volume of media 2d, at 646-647. Trial courts are frequently intemper- “immense” and uniquely positioned public to assess ate, but “the sheer number of victims” credibility pro- sentiment and the animosity created a climate which events, spective jurors. Proximity to deep toward ran and the de- however, always is not a virtue. Per- widely sire for conviction was shared. sons the midst of a tumult often F.3d, at 559-560. panoramic “[AJppellate lack a tribunals view. *59 duty [thus] have the to public The level of animus toward independent make an evaluation of in Skilling present dwarfed that cases Sheppard, the circumstances.” 384 Murphy such as and Mu’Min. The U.S., 1507, at 16 L. Ed. pretrial publicity those cases con- In particular, reviewing 2d 600. reports, sisted of dozens of news most qualified inquire courts are well to “largely of which were factual na- imple- into whether a trial court U.S., 421 Murphy, ture.” at 95 S. procedures adequate keep mented community prejudices to 2031, 44 Ct. L. Ed. 2d 589. There was infecting
from no indication that the relevant com- If jury. process the the selection captivated by munities had been the does not befit the circumstances of the case, adopted cases or had about the defendants. fixed views im- rulings
the trial court’s on contrast, partiality necessarily are called into reports number of media this case U.S., Morgan, doubt. See at 729- thousands, reached the tens of and passions, particularly full-throated denunciations of Skill- ing when thou- unsuspecting people were common. The much closer sands of are Irvin, analogy is thus to which simi- robbed of their livelihoods and retire- Indeed, larly “barrage” savings. featured a of media ment the record coverage “huge replete examples and a . . . wave of this case is with of U.S., public passion,” outrage at visceral toward See, e.g., 6 L. Ed. 2d al- other Enron executives. Re- not, though (front-page, even that case did as cord 39946 story describing eve-of-trial here, anger involve direct harm to entire “the hurt and segments community.10 [ing] and resentment. . . churn inside” Houston). people of Houstonians Irvin, Attempting distinguish to, compared Skilling among other majority suggests Skilling’s that eco- murderer, things, rapist, a an axe incendiary nomic offenses were less than Irvin’s violent crime Qaeda an al terrorist.11 As one com- spree “ observed, sign [i]t’s mentator that “news stories about Enron con- how shocked Houstonians are about nothing resembling tained fying the horri- ignominious Enron’s Sept. demise that reports information rife about can be invoked—and is fre- rampage Irvin’s of robberies and mur- quently—to explain the shock of the Ante, 2d, ders.” 177 L. Ed. at company’s collapse.” Supp. Record lines, Along 651. similar the District strong 544. The bad blood was so Skilling that Court described “the facts of this case top and other executives [as] neither heinous nor sensational.” private security protect hired App. to Brief for United States 10a. persons themselves from inclined to majority points The years also to the four take the law into their own hands. passed that between (“After See, e.g., App. taking 1154a victims, temperature [a of Enron’s Enron’s lawyer] says local tives are wise to take tions”). the Enron execu- bankruptcy declaration of and the security precau- trial, Skilling’s asserting start of “the decibel level of media attention diminished somewhat” over this time. Second, passage of time did Ante, 2d, at 644. community little to soften sentiment. arguments persua- Neither of these is Contrary suggestion, to the Court’s sive. ante, this
First, Yount, may way while violent crimes well case no resembles where, provoke widespread community rage out- the time of the defendant’s retrial, readily “prejudicial publicity [had] more than crimes involv- loss, ing monetary greatly community economic crimes diminished” and certainly capable rousing public significantly are animus had waned. 467 that, articles, Skilling’s experts involving judges “[i]n 10. One of noted cases 200 or more trial ¶30, granted change App. of venue 59% of the time.” at 611a. (“I’m See, F.3d, livid, e.g., absolutely my friggin’ n. 42 livid .... I have lost entire (internal omitted)); people. They raped quotation App. retirement to these have all of us” marks is, feel, (“Hurting many elderly people severely equivalent being 382a so I an axe (alteration *60 just [community]” murderer. His actions were as harmful as an axe murderer to the in (“Not id., bombers, original)); having pilots at 1152a-1153a the stuff of suicide Enron’s executive advantage golden parachutes high-flying corporate jet setting took full of to bail out of their after frame, pancaked the craft on a course to financial oblivion. In a business time Enron faster than towers”); id., (noting “Skilling’s picture up alongside the twin at 1163a that turned Osama bin posters company headquarters”). Laden’s on ‘Wanted’ inside the U.S., working way up through 81 L. their the ranks”). ibid, (in in put As the Chronicle it 847; Ed. 2d see also July shortly after the trial of preceding months the defendant’s re- several Enron Broadband Services ex- trial, newspaper reports about ecutives ended without convictions: averaged case “less than one article trial, “The real the true measure of month,” per public and interest was in “minimal”). justice saga, begins the Enron story The Enron was a if January. fry Let the small swim free continuing saga, “publicity and re- got bigger need be. We’ve fish need throughout.” mained intense F.3d, frying.” App. (paragraph of 1460a only at 560. Not did Enron’s (“From omitted); breaks see also ibid. generate downfall wall-to-wall news beginning, prosecution the Enron coverage, but so too did a succession has had one true measure of success: subsequent Enron-related events.12 Lay Skilling cage”). and a cold steel particular highly publi- Of cized Causey just note is the guilty plea of codefendant Any prevailing doubt that Skilling’s weeks before community mindset the Houston If anything, trial. the time that overwhelmingly negative remained elapsed bankruptcy between the and dispelled by prospective jurors’ was seating the trial made the task of an responses question- to the written difficult, unbiased more not less. indicated, previously naires. As su- many For members 2d, pra, at 674-675, more than one-third of the jury pool, prospective jurors either knew vic- or were vic- highly publicized collapse each Enron-related tims of Enron’s themselves, guilty plea likely gave or conviction served tims and two-thirds certainty responses suggesting to increase their ing that Skill- an antidefen- in—if In engaged many too had not master- dant bias. contempt instances their acts, particularly Skilling palpable. minded—criminal was given coverage supra. Only that the media rein- See nn. a small supra, prospective jurors forced this view. See 434, at 433- fraction of the flags responses. at 675-676. The raised no red their Skilling Lay Causey’s guilty trial of was the cul- And this was before plea flurry reports mination of all that had come before. and the of news (noting “pros- accompanied approach See Record 40002 pattern Skilling’s experts, po- ecutors followed the classic trial. One of Among highlights: Congress, In testified before and other Enron indicted, rights; executives invoked their Fifth Amendment Enron auditor Arthur Andersen was tried, convicted, charges justice; charged and sentenced on of obstruction of the Enron Task Force fraud, Skilling-protege money laundering, Enron chief financial officer and Andrew Fastow with crimes; employees pleaded guilty charges. and other and at least two Enron on fraud and tax In (the Clisan, employees, including the Enron Task Force indicted numerous Enron Ben Jr. (wife treasurer), treasurer), company’s Lea Fastоw of Andrew and an assistant and more than half Services; employees guilty pleas a dozen executives of Enron Broadband several Enron entered sentences; prison bankruptcy reorganization plan. and received and Enron filed its In pleaded guilty; Skilling Causey February; Andrew and Lea Fastow both were indicted in superseding adding Lay July; employees indictment was filed in a number of additional Enron guilty pleas; employees Lynch entered and former Enron and Merrill bankers were defendants concerning involving Nigerian barges. a 6-week trial in Houston an Enron deal the sale of Services; a 3-month trial was held in Houston for five executives of Enron Broadband various and, pretrial proceedings runup Skilling, Lay, Causey; occurred in the to the trial of three date, Causey pleaded guilty weeks before the scheduled trial to securities fraud. *61 Wisconsin, pre- Groppi litical scientist who had studied v. 510, (1971) publicity years”
trial “for over 35 and 91 S. Ct. in high- (“‘[A]ny judge consulted more than 200 who has sat (in profile juries spite cases which he had recom- with knows that against changes they extremely likely mended venue more forms impregnated by are to be not), environing “c[a]me often than sion that the extent and to the conclu- the atmo- ” depth sphere’ (quoting Mangum, of bias Frank v. questionnaires shown these is the 237 U.S. 59 L. (1915) (Holmes, J., highest very or at least one of the Ed. 969 dissent- I highest App. ing))). Perhaps have ever encountered.” because it had under- ¶¶2, 7, 783a, (emphasis public’s antipathy at 785a estimated the to- deleted). Skilling, ward the District Court’s manifestly
5-hour voir dire was
insuf-
identify
ficient to
and remove biased
jurors.13
matter,
antipathy
important
Given the extent of the
As an initial
community
inquiry
pursued
evident both
the
at
lines of
were not
at
instance,
large
responses
majority accepts,
the
to the
all. The
questionnaire,
“publicity
written
it was critical
that
about a codefendant’s
“strong guilty plea
inquiry
guard
for the District Court to take
calls for
to
Ante,
against
385,
prejudice.”
2d,
measures” to ensure the selection of
actual
at
impartial jury
Implying
“an
free from outside
177 L. Ed.
at 645.
U.S.,
Sheppard,
influences.”
that the District Court undertook this
inquiry,
“[o]nly
majority
the few occasions when at 843a. It is thus not jurors they prospective jurors were asked whether whether other also pressure public would feel from the to overheard information convict, they acknowledged it whether too believed that it re- might unfavorably be difficult to return home after flected on the defen- Instead, Causey plea. plea only Skilling’s information about the Juror 96 remarked on the after managed squeeze followup any guilty pleas counsel in a as to whether he had “read about in this case over the last month or two.’’ at 993a. transcript erroneously prospective juror 15. Portions of the voir dire refer to this as “Juror 110.’’ See, id., e.g., at 996a. dants; id., 879a, apparent prospective nor is it what other 966a.17When may outside information have been among shared the venire members. At jurors forthcoming, were more their least, very Juror 101’sstatements responses highlight tended to questions indicate that the court’s ubiquity negative tone of the local *63 failing bring light were to to the ex- coverage, underscoring news thus jurors’ exposure potentially tent of prejudicial to press guarded need to the more mem- pro- facts and that some bers of the venire for further informa- spective jurors having difficulty were example, tion.18 Juror for men- following the court’s directives. hearing program tioned a radio that topics The that the District Court En- very morning which a former in cursory did cover were addressed employee compared persons ron who prospective jurors fashion. Most were Skilling guilty did not think was to just yes/no questions asked a few id., Holocaust deniers. See (“[H]e at 863a general exposure about their to media thought said he that he would coverage and a handful of additional if guilty automatically find them he questions concerning any responses was on the because he said that it questionnaire sug to the written gested that trying would be worse than a German instances, many bias. their kill say to that didn’t unenlightening.16 answers were Yet Jews”).19 jurors may Other well have rarely sought the court to draw them encountered, by, and been influenced open-ended questions out with about similarly incendiary rhetoric. impressions their of Enron or patience and showed limited counsel’s These deficiencies the form and See, followup e.g., questions efforts. content of the voir dire con- (who exchange jury) typical: 16. The court’s with Juror 20 sat on the is you reading any particular Lay Skilling? Do remember articles about this case or Mr. or Mr. “Q. week, just recently nothing— “A. Not until this but And there have been a lot of articles this week. “Q. “A. Yeah. you any particular you’ve Do recall articles read in the last week or so? “Q. word, “A. Not word for no. you Sunday Did read all the articles in the “Chronicle”? “Q. “A. Some of them. you reading? Which ones do remember “Q. trial, think, Id., going “A. The one about the I and how the trial was to work.” at 873a-874a. majority’s Skilling’s failing questions many 17. The criticism of counsel for to ask of the ante, 2d, prospective jurors, misplaced. cf. at at is thus Given the District express warning early Court’s in the voir dire that it would not allow counsel ‘To ask individual 879a, questions [they] right, App. hardly declining abuse[d]” if that counsel can be blamed for Moreover, every perfunctory exchanges test the court’s boundaries at turn. the court’s with prospective jurors gave permissible inquiry. often counsel no clear avenue for further Although community hostility, 18. the District Court underestimated the extent of the it was certainly ubiquity pretrial publicity, acknowledging aware of the that “all of us have been Id., exposed to substantial media attention about this case.” at 841a. The court even made an case,” prior prosecutions, Nigerian barge apparently offhand remark about one of the Enron “the Id., expecting prospective jurors would understand the reference. at 840a. Taking prospective jurors, a more defendant-favorable line than most Juror 17 stated that minded,” “thought guy pretty “everyone [on radio] he was narrow should be considered court,” totally they get might [to] innocent until a chance to come and that the Government have added, however, prosecutions. been overzealous in some of its Enron-related at 863a-864a. He ."Id., probably accounting [d] [at Enron] that he “believe there was some fraud at 864a. The District cause, request ultimately Court denied the Government’s to remove Juror 17 for but he did not sit jury. on the deeper problem: plain, jurors’ tributed to a The Court has made assur- impartiality simply ances of are not District Court failed to make a suffi- sig- entitled to this sort of talismanic ciently prospec- critical assessment of See, U.S., e.g., Murphy, nificance. jurors’ impartiality. tive assurances of 2031, 44 L. Ed. 2d otherwise, Although the Court insists (“[T]hejuror’s assurances ante, transcript the voir dire indicates that essеntially
the District Court took that he jurors equal th[e] is task cannot be dis Ir positive rights”); of the accused’s vin, U.S., they prom- their word when (“Where many, L. Ed. 2d 751 many so so Indeed, ised to be fair. the court de- times, prejudice, admi[t] ... a any pro- clined to dismiss for cause spective juror impartiality given statement of can be ultimately gave who *64 weight”). little impartiality, clear assurance of no still, equivocation pre- matter how much Worse the District Court on a instance, accepted ceded it. Juror on her for wrote number of occasions declara questionnaire Skilling impartiality equivo tions of that were App. Prospective jurors was “not an honest man.” 881a. cal on their face. in During questioning, “hope[d]” they presume she acknowl- who could edged having previously thought defendants were necessarily” per the nocence and did “not
guilty,
Skilling
guilty
and she dis-
think
was
were
$50,000-$60,000
pool. App.
closed that she lost
mitted to remain
401(k)
932a,
instance,
in her
as a result of Enron’s
857a. Juror
for
Id.,
880a,
collapse.
Lay
questionnaire,
883a. But she wrote of
on her
Id.,
ultimately agreed that she would be “Shame on him.”
at 931a. Asked
Id.,
this,
presume
able to
881a,
innocence.
the court about
she stated
that,
Noting
guilty,
“blame[d]
884a.
that she
“innocent or
he was at the
money”
Enron for the loss of her
appeared
and helm” and “should have known what
Ibid.;
bias,”
going
company.”
to have “unshakeable
was
on at the
id.,
Skilling’s
challenged
(Skilling
“prob
counsel
her for
see also
ably”
court
sume,
at 934a
is
Id.,
court,
“in
Lay).
cause.
ever,
at 885a. The
how-
the same boat as”
The
her,
asked,
stating
you pre
“[C]an
declined to remove
then
trial,
candidly
go-
you
that “she answered
ing
she’s
as
start this
that Mr.
Id.,
open
Lay
to have an
mind now” and
is innocent?”
at 932a. She
so,
“I
I
“agree [ing]”
responded,
hope
you
with the Government’s
but
know.
I
honestly
assertion that “we have to take her at don’t know.
can’t
answer
Ibid.;
.’’Id.,
way
her word
at 885a-886a.20 As this
that one
or the other.”
see
majority attempts
downplay
significance
by noting
20. The
of Juror 29
that she did not
ante,
up
Skilling
peremptory challenge
end
on the
because
used a
to remove her. See
2d,
majority
point
respect
n.
at 652. The
makes a similar
with
to other venire
ante,
ultimately
members who were not
seated. See
n.
at 648. The
members, however,
assessing
impartiality
comments of these venire
are relevant
of the
jurors,
similarly “part
community deeply
may
seated
who were
of a
hostile to the accused’’ and who
Florida,
794, 803,
“unwittingly
by Murphy
have been
. . . influenced
it.’’
v.
421 U.S.
(1975);
Dowd,
see also Irvin v.
like to think could rise above Skilling Lay but I’ve never been this situation had been cast as the I I in- leading before. So don’t know how could honestly villains. Juror stance, question “may answer that one told the court that she I way or the other. ... do have some have heard a little bit” about Enron- concerns”). however, Eventually, litigation “really Ju- related pa[id] but had not ror 61 answered “Yes”when the court attention.” at 935a. Yet she if if acquit clearly specifics. asked she would be able to was aware of some questionnaire, despite stating she had “a reasonable doubt that the On her Id.., guilty.” defendants are at 933a- that she had not followed Enron- related cause, news, Challenging 934a. fense counsel insisted that not received “a clear and her for de- she wrote about
they had “whistleblowers and Arthur Andersen unequivocal lying aсcounting,” about Enron’s ability expressed answer” about her to be fair. she and the view that challenge, Lay “probably they Ibid. The court denied the knew were know, stating, breaking Supp. App. “You she tried.” Ibid. the law.” 105sa- During questioning, 106sa. which minutes, barely lasted trict Court obtained no information about the actual extent of four the Dis- majority The takes solace meaningful persons actually fact that most of the jurors “spe- seated as cifically and alternates familiarity Juror 63’s with the case or paid stated that had in Skilling’s the basis for her belief guilt. *65 accepted scant attention to Enron-related Yet it nevertheless her “absolutely” 937a.22 assurance that she could [561 459] U.S. presume App. innocence. Ante, 390-391, news.” 2d, at 177 L. Ed. context, at and n. 26.21 [561 460] U.S. however, Indeed, general these declarations the District Court’s anemic jurors’ questioning dispel reveal little about the seated did little to similar knowledge pos- impartiality actual sible convict, dence that the or views or the doubts about the of nu pressure they might jurors have felt to merous other seated and alter estimation, In my and thus cannot instill confi- nates. more than
jurors “were not under half of those seated made written and sway” prevailing suggesting [the] commu- oral comments active an ante, nity tipathy sentiment. Cf. at toward the defendants. The 2d, majority L. Ed. at 649. Jurors who did not thus misses the mark when “get compli- “Skilling’s ju into details” of Enron’s it asserts that seated (11 16) majority jurors 21. The also notes that about two-thirds of the seated and alternates Ante, 2d, 648-649, personal had no Enron connection. 177 L. Ed. at and n. 25. This means, course, jurors that five of the seated and alternates did have connections to friends or colleagues jobs money collapse—a who had lost or as a result of Enron’s fact that does not strike particularly reassuring. me as observed, Skilling’s jury experts “tendency jury pool 22. As one of there is a in voir dire of media, high-profile exposure knowledge prejudicial members in cases to minimize their to their (“Those information, ¶99, 763a; id., ¶95, any they may App. biases have.’’ see also at 637a perceive perceived good they who themselves or wish to be as citizens are reluctant to admit cannot fair’’). reason, jurors ‘yes’ be For this the fact that “none of the seated and alternates checked the ’’ questionnaire opinion [Skilling],’ ‘ha[d] box’’ on the written when “asked whether an about ante, 2d, significance, particularly given Causey is of minimal that plea impending significant coverage questionnaires and the trial received media were after submitted. nothing got rors . . . exhibited like the that he the “Houston Enron-related news from Ante, Chronicle, display of bias shown Irvin.” Channel 10, News, News, O’Reilly at 651. Juror Channel 13 instance, Factor, co-workers”; reported talking [and] on his written with friends and questionnaire regularly that he knew several that he visited stock; site; “greed co-workers who owned Enron the Chronicle Web that on personally may part” company’s that he have owned Enron’s caused the fund; through collapse; people “[a] Enron stock a mutual and that lot of financially.” Supp. App. that he heard and read about the were hurt During questioning, Enron cases from the “Houston 26sa-30sa. he Chronicle, all three Houston news stated that he would have “no channels, news, talking Fox with co-workers, [and] [and] friends Texas prob- Lawyer Magazine”; that he believed requiring lem” the Government collapse greed Enron’s and did not know what was company, “was due to case, prove its but he also told the mismanagement”; [Lay] “[i]f Lay court that he believed was going on his “greedy” corporate and that execu- really poor he was “stretching legal tives are often manager/leader”; and that the defen I’m going say limits .... they’re not “suspect.” Supp. App. dants were crooks, but, you all know.” During questioning, 11sa-19sa. he 857a, App. 854a. Asked whether he “th[ought]” presume said he he could “star[t] would the case with sort of an [d]” innocence and “believe put he could inkling [Lay greedy is] that bеcause proof, the Government to its but something illegal,” he must have done acknowledged might he also have “some that he he offered an indeterminate “not nec- “in hesitancy” telling essarily.” at 857.23 people its case.” government prove didn’t
App. 851a-852a. jurors “work[ed] Juror wrote that he While several seated and al Enron”; specific with someone who worked at ternates did not make com See, Many jurors expressed similarly troubling e.g., other seated and alternates sentiments. (Juror 20) (obtained Supp. App. 57sa-60sa Enron-related news from the Chronicle and “local news stations’’; collapse enough corporate procedures “[n]ot blamed Enron’s on controls or effective audit *66 assets’’; prevent mismanagement corporate “angry many people jobs to and was that so lost their (Juror 38) (followed id., savings’’); and their retirement at 72sa-75sa Enron-related news from sources, Chronicle; including “angry happened’’; “fe[It] various the was about what and bad for id., corporation] only away’’); those that worked hard and invested in the to have it all taken (Juror 64) (had money; 117sa-118sa several friends who worked at Enron and lost heard about the news; collapse “people jobs [and] Enron cases on the described the as “sad” because lost id., money—lots money’’; right thing’’ investigation); and believed the Government “did the in its (Juror 87) (received Chronicle, news, at 177sa-181sa Enron-related news from the Channel 13 Factor, sources, friends, co-workers; O’Reilly family, Internet news and and attributed Enron’s collapse “[p]oor management judgment—greed’’; [and] “[t]he bad lamented sad state of the accounts’’; long-term loyal employees nothing [d] who are left with in their retirement and “admire bravery’’ bringing [the] of Enron whistleblower Sherron Watkins “for the situation to the attention (Juror 90) (heard worse’’); id., public, stopped things getting of the which from at 191sa-195sa wife, co-workers, television; right “[i]t’s Enron-related news from his wrote that not for away money average someone ... to take’’ that the “small worker saves . . . for retirement all life’’; id., investigation good thing’’); his and described the Government’s Enron as “a (Juror 113) (obtained [who] 221sa-225sa information about Enron from a “co-worker was in the trial’’; jury pool employer money for Mrs. Fastow’s worked for an who lost as a result of Enron’s collapse; collapse huge people’’; thought found it “sad” that the had affected “such a number of (Juror 116) (knew id., doing something illegal’’); colleague “someone had to be at 236sa-237sa Chronicle, money collapse; who lost in Enron’s obtained Enron-related news from the “Houston radio, friends, co-workers, Magazine, family, [and] [and] [and] Time local TV news internet news sources’’; employees savings’’). “[t]he and noted that what stood out was and retirees that lost their I suggesting prejudice, jurors, telling ments their these seated find responses written and oral were so in way virtually abbreviated as to make it impossible for the District Court reli played which voir dire out. ably they to assess whether harbored When the District Court asked the prospective jurors in any latent biases. Juror for group as a whether stance, questionnaire wrote on his any had reservations about their that he had heard about the Enron ability presume put innocence and Supp. App. “[n]ews.” cases from the proof, only the Government to its two him questioned 42sa. The court affirmative, answered and both minutes, during two which time he Id., were excused for cause. at 815a- confirmed that he had “heard what’s on the 820a. The District Court’s individual questioning, news, basically,” including truncated, though ex- “that the trial had moved from the 17th to the 31st.” He added that the
posed disqualifying prejudices among
story
detail of Enron.”
meaningful
every
“was all over the news on
prospective ju-
numerous additional
App.
858a-860a. No
expressed
rors who had earlier
no
information about his
impartiality.
concerns about their
See
knowledge or attitudes was obtained.
7, supra.
n.
It thus strikes me as
Similarly, Juror 78 wrote that she had highly likely that at least some of the
not followed Enron-related news but
jurors, despite stating
seated
that
“[m]any people
was aware that
lost
fair,
they could be
harbored similar
jobs.” Supp. App.
questioned
their
151sa. The
probing inquiry
biases that a more
court
seconds.
her for less than 90
Yount,
likely
exposed.
would
have
Cf.
time,
During
that
she ac
U.S.,
467
2885,
n.
knowledged
“caught
“kn[e]w
that
she had
(holding
that
glimpses”
generally, you
pany
“were some
coverage
“particularly
the trial court’s
exten-
know,
the com
10-day
sive”
voir dire ensured the
bankrupt”
went
and that there
jury’s impartiality).25
employees
that went off
App.
and did their own businesses.”
ante,
majority suggests,
The
969a. Little more was learned.24
383-384, 395,
at 644-
In assessing
jury’s
the likelihood that bias
decision to
acquit Skilling
relatively
lurked
the minds of at least some of
on nine
jurors
category.
questionnaire
24. Several other
fell into this
Juror 67 wrote on his
that he had
heard about Enron from the Chronicle and “Internet news sources.’’
at 133sa. He was
seconds,
questioned
during
for 90
which time he indicated that he had read an article on the
preceding night
taking place today,
App.
Internet
“about the
selection
stuff like that.’’
944a. Juror 99 wrote that she had not heard or read about the Enron cases and did not “know
anything
Supp. App.
questioned
barely
about’’ Enron.
210sa. The District Court
her for
one
case,
really’’
“[n]ot
minute. She stated that she had
learned more about the
but added that she had
parents. App.
press
heard “this and that’’ from her
995a-996a. The court did not
further.
*67
majority suggests
Skilling “challenged only
jurors
25. The
that
the fact that
one of the seated
Ante,
jurors
for cause’’ indicates that he did not believe the other
were biased.
177 L. Ed.
2d,
decisions, however, distinguish
involving
partiality
at 652. Our
claims
“the
of an individual
juror’’
partiality
jury
from antecedent
claims directed at “the
of the trial
as a whole.’’ Patton v.
Yount,
1025, 1036,
(1984);
467 U.S.
104 S. Ct.
see also Frazier v. United
(1948) (“[T]he
States,
challenge[s]
dices. Such well wholly lacking, where evidence is sum, In I accept majori cannot subconsciously resolving while closer ty’s gave conclusion that voir dire against calls the defendant rather sturdy District Court “a foundation to him giving than the benefit of the assess fitness for service.” Cf. McVeigh, doubt. Cf. United States v. ante, at 651. (WD Supp. 918 F. Okla. together, Taken the District Court’s 1996) (Prejudice “may go unrecog- subjects, failure to cover certain vital its nized superficial coverage topics, of other acceptance and its uncritical of assur impartiality those who are affected it. ances of leave me doubt prejudice may deny Skilling’sjury The a fair ful that from the pervaded was indeed free deep-seated animosity trial is not limited to a bias or dis- criminatory community large. attitude. It includes an impairment pro- “[RJegardless of the deliberative of the heinousness of reasoning charged, apparent guilt cess of deductive dentiary from evi- the crime offender[,] resulting facts from an attri- or the station life something occupies,” system jus bution to not included which he our something the evidence. That has its tice demands trials that are fair Irvin, if powerful generates appearance most strong effect it both U.S., and fact. responses”). emotional this I
regard, significant it is that the Gov- 2d 751. Because do not believe Skill standard, I placed relatively ing’s grant ernment little em- trial met this would him phasis trading on the nine insider relief.