More on the Honest Services Supreme Court Cases and Tax Obstruction

I have previously blogged here the possibility that the pending cases before the Supreme Court on honest services fraud might portend some constriction of the scope of the Tax Obstruction Crimes. I found this discussion of the issue in the sentencing hearing transcript (pp. 49-59) in United States v. Coplan (SD NY No. (S1) 07 Cr. 453 (SHS) (the full transcript is here); the Judge is Sidney Stein and the attorney is Dennis Riordan of Riordan & Horgan who apparently will work on the appeal but handled the honest services issue connection to the conviction):

MR. RIORDAN: And Nat Lewin, who is going to be appellate counsel for Nissenbaum, are present in court today and we have been in intensive discussions for several months about this juncture that we are reaching here where we would present these questions to the court. I don't know -- and as a result of that we sort of have divided responsibility. So there are issues that I am prepared to address, but we will be cross-referencing each other's presentations and I don't know whether the court would prefer that at the end of the sentencings for Mr. Nissenbaum and Mr. Shapiro the three of us jointly address this question or whether you would like me to present some argument on the issues that I was prepared to address.

THE COURT: Well, I guess the answer to that question is, tell me what substantial question of law or fact is going to be raised on appeal that is likely to result in reversal or an order for a new trial. That's what I want to know. Tell me what your argument is.

MR. RIORDAN: Yes, your Honor. I will do that. There is going to be a major issue in this case, and I don't have the burden of asking the court to find any error on its own part because this issue did not exist at the beginning of this trial and did not really germinate fully until well after the convictions were returned, and that is that when this case is argued in the Supreme Court -- in the Second Circuit, the Second Circuit --

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