A few months ago, I
wrote about the infirmities in the conviction of Joe Ferriero. After yesterday's Supreme Court
ruling on the conviction of Jeffrey Skilling, it appears that Ferriero is going home. In brief, Skilling's case was remanded to the lower courts because the basis of his conviction might have been the "Honest Services" statute, which had been used broadly by Federal prosecutors to catch those engaged in activities that were conflicts of interest from the interests of that individual's employer. Under the Supreme Court's interpretation, the statute only covers the taking of bribes and kickbacks from a third a party, as that is the conduct that Congress was addressing based on the legislative history of the statute. Schemes in which the defendant benefited from a conflict of interest, such as Ferriero who with his co-conspirator benefited from hiding their involvement with a company doing business with a municipality, but who did the work and took no bribes or kickbacks, will likely result in dismissal or retrial.
