1. It was open to the jury to find honest services fraud without money theft.
2. That's because because that type of fraud could have been committed by non disclosure in violation of a fiduciary duty to disclose where the non disclosure enriches the non discloser at the reasonably possible expense of those entitled to the disclosure.
3. And that non disclosure used to be criminally actionable owed even absent money theft.
Posner at the end of that was reduced to saying, and I paraphrase, "that argument wasn't in your brief".
My guess is that Black wins on that point.
Posner argued that there was no "analytical link" between the two and the jury had plenty of evidence on which to find, as it did, Black's "corrupt intent."
I have a harder time guessing on this point but fwiiw, which is bubkes, I'd give the nod to Black here to.
This all is based on what I could gather from one listen to the oral argument, some of which escaped my understanding and a some of which was hard to hear.
My favourite line was Posner saying to Estrada, after Estrada said something about "a parody of reasoning", and I paraphrase, "Don't 'parody me reasoning.'"....