Honest Services Fraud

The most recent edition of the Federal Law Enforcement Training Center's Legal Division's newsletter discusses U.S. v. Inzunza (copy of decision via the new Google Scholar's legal research feature):

The quid pro quo required for bribery is a payment made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. Similarly, when the government seeks to prove honest services fraud in the form of bribery, it must prove a quid pro quo. The quid pro quo must be clear and unambiguous, leaving no uncertainty about the terms of the bargain.

Private gain is not an "implied" or "necessary" element of honest services fraud. The intent to defraud does not depend on the intent to gain, but rather the intent to deprive.

The 10th Circuit agrees (cite omitted).

The 3rd Circuit agrees because requiring private gain would merely substitute one ambiguous standard for another (cite omitted).

The 5th Circuit agrees because it has adopted a state-law-violation requirement instead (cite omitted).

The 7th Circuit disagrees, requiring proof of private gain (cite omitted).