Honest-Services Fraud (18 U.S.C. § 1346) in Miami

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012, in state and federal court. Our office answers 24 hours a day.

Three Versions, Three Sets of Elements

Public official or public employee (Pattern Instr. O50.2, Elements). The Government must prove:

1. You knowingly devised or took part in a scheme to fraudulently deprive the public of the right to your honest services through bribery or kickbacks.
2. You did so with intent to defraud the public of that right.
3. You used the mail or a private or commercial interstate carrier (or, for wire fraud, an interstate wire) to carry out the scheme.

Bribery and kickbacks, under this instruction, mean exchanging something of value for an official act, including soliciting or agreeing to accept it, whether or not the official act happens. An official act must involve a formal exercise of government power on a specific question or matter, similar to a lawsuit before a court, a determination before an agency, or a hearing before a committee. Setting up a meeting, talking to another official, or organizing an event, without more, is not an official act.

Private employee (O50.3, Elements). The scheme deprived your employer of your honest services through bribery or kickbacks; you intended to defraud the employer of that right; you foresaw or reasonably should have foreseen that the employer might suffer economic harm; and you used the mail or a carrier.

Independent contractor or other private relationship (O50.4, Elements). The Government must first prove you owed a duty of honest services to the victim, meaning the relationship gave you a position of dominance, authority, trust, and real control, then the same elements as O50.3, including foreseeable economic harm.

In every version, intent to deceive alone is not enough; the intent must be to cause loss of honest services.

Penalties

Honest-services fraud is charged under the mail fraud (§ 1341) or wire fraud (§ 1343) statute: up to 20 years, or up to 30 years and a $1,000,000 fine if the violation affects a financial institution or involves a presidentially declared disaster or emergency benefit. Each mailing or wire can be a separate count. A conspiracy or attempt carries the same penalty (§ 1349). Mail and wire fraud are also on the list of crimes that can trigger a mandatory consecutive 2-year aggravated identity theft count.

The Key Limit: Bribes and Kickbacks Only

Every version of the pattern instruction requires proof of a bribery or kickback scheme. An undisclosed conflict of interest or self-dealing, without a bribe or kickback, does not meet those elements. In public cases, the instruction also requires a specific, formal "official act."

Defense Themes

• No bribe or kickback: a gift, a friendship, a campaign contribution, or a business relationship is not automatically a bribe.
• No official act in public cases.
• No duty in contractor cases, and no foreseeable economic harm in private cases.

Related: Federal-Program Theft & Bribery (§ 666), Extortion & Bribery, Federal Conspiracy.

What to Do First

1. Don't explain the relationship to agents without a lawyer.
2. Preserve calendars, texts, and records of gifts, payments, and decisions.
3. See White Collar Crimes for parallel ethics and civil cases.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

I had an undisclosed conflict of interest. Is that honest-services fraud?

Not by itself. The pattern instructions require a bribery or kickback scheme.

I'm a private employee, not an official. Can I be charged?

Yes, but the Government must also prove you foresaw, or should have foreseen, economic harm to your employer.

Is arranging a meeting an "official act"?

Under the instruction, setting up a meeting, without more, is not an official act.