Dear Mr. Rothfeld
I read your article "Fraud Cases get Rehashed after Court Ruling" dated September 25, 2010. I am one victimized by these vague penal fraud statutes. My studies show the problem and fix to be far more complicated than the surface rhetoric being bantered about. The Skilling ruling was wrongly decided and will not stand. J. Ginsberg misapplied the doctrine of constitutional avoidance and expressed as much when J. Scallia baited her in the concurance to defend. He was right that section 1346 fails to express the behavior it condemns. (see sorich dissent 2009) What people are overlooking about 1346 is that it was an errant fix to the McNally ruling of 1987. They reacted to the courts redefinition of "money and property" to include honest services by enacting 1346 which is titled "the definition of scheme or artifice". A phrase common to all fraud statutes in chapter 63 of title 18. Scheme or artifice was defined by the McNally fix (1346) in the 1987 enactment to include honest services which is too vague to function at law and should have been found unconstitutional by the high court. Instead. I believe for economic and political reasons, they violated what they said they would not in clark v. martinez 2008 to "invent" as Scallia put it, a new statute in violation of the separations doctrine and trespassed upon the legislators. An act that will not be overlooked as your article notes. When the court in Skilling confined the 1346 definition to only bribes and kickbacks they were not confining honest services as everyone believes from their cursory review but confined all fraud statutes (bank, mail,and wire) to only bribes and kickbacks through the common language of "scheme or artifice to defraud". This is tantamount to a judicial pardon, which is very different than the executive, for all fraud practiced during the mortgage crisis. Of course with a judicial pardon there is no immediate release for the incarcerated or immediate assurance you will not be taken before a grand jury. It will be relegated only to those who know how to avoid all the prosectorial and judicial traps that are laid to secure an unjust conviction. For the few who will argue correctly and not succumb to fear they will ultimately prevail. White collar prosecutions are a darling of the this system and will only suffer a small setback why the government tries to limit the collateral damage of the Skilling ruling and to deceive the public with legal deflections. Thanks for your time.