Over the course of this wide-ranging trial, jurors will hear every allegation of criminal and non-criminal misconduct by Ryan and Warner that prosecutors have collected by threatening their former associates (and one former associate’s fiancée) with heavy mail fraud sentences of their own. The alleged misconduct will cover a twelve-year period and range from failing to register as a lobbyist, to accepting secret consulting fees from a presidential campaign, to giving low-number license plates to campaign contributors.Prof. Alschuler promises to follow up with a discussion of how the mail fraud statute’s protection of an "intangible right to honest services" and RICO prosecutions lead to "wide-ranging trials in which jurors may wind up judging the person rather than the charge."
At the conclusion of this trial, the jury will not announce which of the allegations of improper conduct have been proven and which have not. It will announce only whether the defendants engaged in some scheme or artifice to defraud and some conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity. If the jury decides that the prosecutors’ charges weren’t entirely a lie and that some of the dirt they have thrown at the wall has stuck, the jury is likely to find the defendants guilty of the principal charges against them. It may seem to the jurors, after months of exposure to the smoke in the courtroom, that there must have been a fire somewhere. The press will not care much about the legal niceties. Although the judge will have told the jurors that they need not find all of the prosecutors’ allegations true in order to convict the defendants, she probably will treat all of the allegations as proven when she determines the defendants’ sentences.
Like many other trials in the Northern District of Illinois (which Judge Frank Easterbrook describes as the mail fraud capital of America), George Ryan’s trial reveals why prosecutors call the federal mail fraud statute "our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart." Although the Racketeer Influenced and Corrupt Organizations Act (RICO) may rank second to the mail fraud statute on the prosecutors’ list of all-time favorites, RICO gives them similar powers.
Note: Now I know it doesn't snag quite as many powerful, rich white men -- and is of little interest to the legal brahmins of the University of Chicago -- but I would argue that the "unlawful possession of a controlled substance with intent to deliver" is the prosecutor's go-to statute.
UPDATE: The Intangible Right to Honest Services:
In the Ryan case and others, prosecutors have used the intangible rights doctrine to stand federalism on its head. In effect, federal prosecutors prosecute state officials and private individuals for state crimes in the federal courts. Worse, they use the mail fraud statute to bootstrap minor state crimes and violations of non-criminal regulations into 20-year federal felonies.