Mark Zachares and the New HSF

Mark Zachares
Over the past few posts, we've discussed the post-Skilling world of Honest Services Fraud (HSF). Today, we use our knowledge to examine how this affects Mark Zachares, a former aide to Rep. Don Young (R-Ak.) who has pleaded guilty to HSF related to the Abramoff scandal.

A couple of weeks ago, Roll Call's Jennifer Yachnin wrote an article highlighting how the Kevin Ring case will shape HSF. Ms. Yachnin reported that Zachares' attorney says his client may want to challenge the "validity" of his plea deal:

Zachares’ defense attorney, Ed MacMahon, raised questions last week over the validity of his client’s plea agreement and sought permission to submit a brief to the court on the issue.

“We couldn’t sentence Mr. Zachares for something that after Skilling wouldn’t be a crime,” MacMahon said.

To our knowledge, Mr. MacMahon has not yet briefed the court on this matter; it isn't even clear that U.S. District Judge Ellen Huvelle has authorized such a brief. The ACR Blog is very curious about the legal arguments that Mr. MacMahon intends to raise. Mr. MacMahon's statements were made before Judge Huvelle determined that a jury may infer a corrupt agreement based on the evidence. Mr. MacMahon would likely try a different course of action due to that decision.

In the meantime, let's see if we can infer a corrupt agreement based on Mr. Zachares' Factual Basis for Plea (Paragraph 11).

ZACHARES joined a conspiracy involving Abramoff and others, using mail and interstate wire communications, to deprive the public of the honest services of ZACHARES. That is, ZACHARES solicited and accepted a stream of things of value from Abramoff and others with the intent to be influenced in his official actions and to agree to take official actions at Abramoff s request. Abramoff and others provided the stream of things of value knowing that it was received by ZACHARES with the intent to be influenced in his official action and to deprive the House of Representatives and the public of his honest services.

Given that Mr. Zachares admits that he "accepted a stream of things of value from Abramoff and others with the intent to be influenced in his official actions and to agree to take official actions at Abramoff s request", a reasonable jury could infer that an agreement existed. In fact, it seems to us that Mr. Zachares' Factual Basis actually says that an agreement existed.

The Justice Department undoubtedly plans to support Zachares' HSF conviction. Even Judge Huvelle suggests that Mr. Zachares should consider alternatives to vacating his plea:

Huvelle noted that Zachares could select from a range of options, including vacating his plea or amending the agreement.

“There are ways to redo something like this simply,” Huvelle said.

The judge raised the possibility that Zachares could even enter a plea related to his financial disclosure forms if he failed to accurately report gifts or other items.

“There are a lot of ways you can address this,” she later added.

We'll continue to monitor this case for any developments. Mr. Zachares is currently scheduled to be sentenced on November 22, 2010.