When the Supreme Court announces a decision in a white-collar case, its statements about the law are not necessarily pellucid descriptions of what is permissible.
That leaves it to the lower courts to sort things out, and of late the 2nd U.S. Circuit Court of Appeals in Manhattan has grappled with the impact of two cases to determine whether defendants should receive new trials.
Public corruption and insider trading prosecutions show how difficult it can be to translate Supreme Court decisions to different factual situations as the appeals court weighs whether to provide any remedy for errors caused by changes in the law.
The challenge is that under a well-known principle called the harmless error rule, appellate judges must decide not only whether there was a mistake in a trial, but more important, also whether it requires a second proceeding to determine a defendant’s guilt.
In McDonnell v. United States, the Supreme Court restricted the meaning of an “official act” in corruption prosecutions, which is described in the statute as “any decision or action on any question, matter, cause, suit, proceeding or controversy.” According to the court, conduct involving “setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit” within those exercises of authority that can be the subject of a bribery or illegal gift prosecution.
The problem with McDonnell’s analysis is that it offered only what is known as a “negative definition,” meaning that what was found insufficient “without more” did not provide much useful…
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