Lawyers Must See Umpteen Shades of Gray (Perspective)

Editor’s Note: The author of this post is a Boston-based litigator.

White collar criminal cases, however, often turn on a second and frequently more complicated question: Is the “it” that the defendant allegedly did even illegal?

The recent appellate decision in United States v. Tavares (1^st Cir. Dec. 19, 2016) exemplifies this reality.

The Tavares defendants were officials in the Massachusetts Department of Probation who engaged in patronage to curry “favorable treatment from the state legislature.” The defendants rigged departmental hiring to ensure the success of legislator-favored candidates. Following a 47-day trial, the jury found the defendants guilty of federal RICO and mail fraud violations.

The U.S. Court of Appeals for the First Circuit acknowledged that the defendants “misran” the Probation Department, and that their actions “may well be judged distasteful.” The court, however, asserted that “not all unappealing conduct is criminal.” The court walked through how the evidence did not meet the requirements for the relevant statutory violations, and overturned the defendants’ convictions. The court concluded that the Government had “overstepped its bounds in using federal criminal statutes to police the hiring practices of these state officials.”

Tavares cited the Supreme Court decision, earlier in the year, in McDonnell v. United States. In McDonnell, the Court vacated the conviction of the former Virginia Governor on public corruption charges because the jury instructions had defined too broadly the conduct that the statute prohibited. The Court also warned against interpreting federal criminal law “in a manner that … involves the Federal Government in setting standards of good government for local and state officials.”

In addition to scrutinizing federal policing of state government misconduct, both Tavares and McDonnell emphasize the spectrum of gray that can enshroud the law in white collar criminal cases. As both courts noted, the issue is not simply whether a defendant may be convicted under a particular statute, or whether such a conviction will be upheld on appeal. Criminal statutes, and their applications, must be pronounced “with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Only then can an individual conform his conduct to those legal standards.

In other words, if the goal is to prevent people from doing “it,” the law needs to define clearly what “it” is. As Tavares and McDonnell make clear, doing so in white collar criminal law is an ongoing effort.