Judge Kleinfeld takes one view of "honest services" and publishes an opinion with his insights. Judge Clifton signs on. Judge Fernandez takes a different view, and dissents, both generally and as applied to this particular case.
The case gets taken en banc. There's going to be a wide divergence of opinions, no?
No.
Judge Tallman writes the en banc opinion. He takes a somewhat different view than Judge Kleinfeld. And agrees with Judge Fernandez even less. How many judges agree with Judge Tallman?
All of them.
All of them, that is, except Judge Clifton. Who signed onto the earlier opinion and -- unlike Judges Kleinfeld and Fernandez -- were drawn for the en banc panel. He sticks to his view. Concurring in the judgment and saying that everyone else's opinion muddies the waters.
