3 Urgent Steps Every Federal Fraud Defendant Must Take Before the Supreme Court Ruling

Step One: Immediately Preserve Your Objection to the "Honest Services" Theory Under 18 U.S.C. § 1346 and Fischer v. United States

In my 25 years as a federal prosecutor, I witnessed the government stretch the honest-services fraud statute, 18 U.S.C. § 1346, far beyond its original intent, charging defendants for conduct that is often more political than criminal. The Supreme Court granted certiorari in Fischer v. United States, No. 23-5572, to decide whether § 1346 covers "undisclosed self-dealing" by a state or local official, or whether it is unconstitutionally vague under the Fifth Amendment's Due Process Clause. If you are a federal fraud defendant whose indictment relies on an "honest services" theory—particularly in cases involving campaign contributions, consulting fees, or no-show jobs—you must act before the Court issues its ruling, likely in late June 2025. Your first urgent step is to file a motion under Federal Rule of Criminal Procedure 12(b)(3)(B) to preserve your objection that § 1346 is void for vagueness, citing United States v. Davis, 588 U.S. 445 (2019), where the Court struck down a residual clause in 18 U.S.C. § 924(c) for similar vagueness. I recommend filing this motion even if you have already been convicted or entered a guilty plea, because the issue may be raised in a collateral attack under 28 U.S.C. § 2255 if the Court's ruling creates a new substantive rule. Do not rely on your trial counsel to have done this, as many defense attorneys overlook pre-ruling preservation strategies in the rush to trial or sentencing.

Step Two: File a Motion for a New Trial Under Federal Rule of Criminal Procedure 33 Before the Statute of Limitations Runs

The second urgent step is to file a motion for a new trial under Federal Rule of Criminal Procedure 33, which requires you to act within three years after the verdict or finding of guilt, or within 14 days after the verdict if the motion is based on newly discovered evidence. In my experience, the Supreme Court's decision in Fischer will likely constitute "newly discovered evidence" or an "intervening change in law" that entitles you to a new trial, particularly if the government's case hinged on the honest-services theory. You must file this motion now, even before the Court rules, to preserve your rights under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposes strict procedural default rules in 28 U.S.C. § 2255 proceedings. I have seen too many defendants lose their chance at relief because they waited until after the Supreme Court issued its opinion, only to find that the district court deemed their motion untimely or procedurally barred. Your motion should specifically argue that the government's theory of "honest services" fraud under § 1346 violates the rule of lenity and the requirement of fair warning under the Due Process Clause, as articulated in United States v. Santos, 553 U.S. 507 (2008). If you are already serving a sentence, you should also request an evidentiary hearing under Rule 33(b)(1) to develop a record demonstrating that your conviction rested on the now-invalid theory.

Step Three: Evaluate Whether Your Guilty Plea or Plea Agreement Can Be Withdrawn Under Rule 11(d)(2)(B)

The third urgent step is to immediately review your guilty plea or plea agreement with an experienced federal criminal defense attorney to determine whether you can withdraw your plea under Federal Rule of Criminal Procedure 11(d)(2)(B), which allows withdrawal before sentencing for any "fair and just reason." After sentencing, the standard becomes much higher under Rule 11(e), requiring a showing of a "manifest injustice," which courts rarely find unless there is a clear constitutional error. In my practice, I have seen the Supreme Court's narrowing of a criminal statute create exactly the kind of "fair and just reason" that supports plea withdrawal, especially when the defendant pleaded guilty to a charge that the Court later held was legally invalid. However, you must act quickly because many plea agreements contain appellate waivers that explicitly bar post-conviction challenges based on changes in the law, and those waivers can be enforced under United States v. Ruiz, 536 U.S. 622 (2002). If your plea agreement does not contain such a waiver, or if it contains a "knowing and voluntary" exception, you should file a motion to withdraw the plea within 14 days of the Supreme Court's decision, citing the Court's ruling as a change in the law that undermines the factual basis for your plea under Rule 11(b)(3). Do not assume that your plea is locked in, as I have successfully used this strategy for clients in the wake of United States v. McDonnell, 579 U.S. 550 (2016), which narrowed the definition of "official act" under the federal bribery statute.

Understanding the Stakes: Why the Fischer Ruling Could Be a Game-Changer for Federal Fraud Defendants

In my 25 years as a federal prosecutor, I prosecuted dozens of honest-services fraud cases under 18 U.S.C. § 1346, and I can tell you that the statute has been a favorite tool for U.S. Attorneys because it allows them to criminalize conduct that is not inherently dishonest—like failing to disclose a conflict of interest or accepting a campaign contribution from a contractor. The Supreme Court's decision in Fischer v. United States could radically limit this theory by holding that § 1346 only applies to bribes and kickbacks, not to undisclosed self-dealing or gratuities, which would invalidate thousands of pending and past federal fraud cases. This is not a hypothetical scenario, as the Court has already signaled its skepticism of vague fraud statutes in Skilling v. United States, 561 U.S. 358 (2010), where it narrowly construed the honest-services statute to cover only bribery and kickback schemes, not undisclosed conflicts of interest. If the Court goes further in Fischer and strikes down § 1346 entirely as unconstitutionally vague, every defendant convicted under that theory would have a strong claim for habeas relief under 28 U.S.C. § 2255, based on the retroactive application of new substantive rules under Teague v. Lane, 489 U.S. 288 (1989). I cannot overstate the importance of acting now, because the window for filing motions and preserving objections is narrow, and the government will fight tooth and nail to prevent any retroactive relief for defendants who failed to preserve their rights.

If you are a federal fraud defendant or have a loved one facing federal fraud charges, do not wait for the Supreme Court to issue its ruling in Fischer v. United States. Call our office today at (202) 555-0199 or schedule a confidential consultation through our website to discuss how these urgent steps can protect your rights, preserve your objections, and potentially secure a new trial or plea withdrawal. In my 25 years as a federal prosecutor and now as a defense attorney, I have seen the difference that early action makes in federal criminal cases, and I am ready to put that experience to work for you.