The Supreme Court has agreed to review the bribery convictions of Joe Percoco, a longtime aide to former New York Governor Andrew Cuomo in a case that could call into question the legality of the honest services fraud prosecution.
Facing opposition from the Biden administration, the High Court decided on June 30 to hear Percoco v. United States Court File 21-1158. As usual, the judges did not give reasons for their decision to accept the case.
Percoco was convicted in 2018 of two counts of conspiracy to commit honest services fraud for taking more than $300,000 from companies hoping to gain influence with the Cuomo administration. He was sentenced to six years in prison but was released for two years in early 2021.
Percoco had served as deputy executive secretary in the governor’s office, but at the time of the payments the government said were bribes, he had temporarily resigned from his post to lead Cuomo’s re-election campaign.
The Biden administration states in a brief (pdf) that despite his formal departure from state employment, Percoco “retained and utilized his [governor’s office] telephone, desk and office, where he continued to manage state affairs. Percoco has made it clear that he “has a guaranteed position in Cuomo’s administration after the election.”
Percoco maintains his innocence, arguing that because he was not a government official at the time he accepted the funds, no corruption was involved.
Percoco attacks the idea of honest services fraud in the petition (pdf) it filed with the High Court on February 17.
Public servants have what lawyers call a fiduciary duty “to act in the best interest of the public, unlike private citizens,” the petition states.
“When a public official accepts money to convince the government to do something, we call him a crook. But when a private citizen accepts money to convince the government to do something, he is called a lobbyist.
Federal law criminalizes honest service fraud, which it defines as “a scheme or device intended to deprive another of the intangible right to honest service.” Although the law was created to combat government corruption, its application is not limited to public officials alone and can cover individuals. The term “honest services” is not defined, which has allowed the courts to decide the scope of the law.
For honest services fraud to take place, someone has to pay a bribe and someone has to be harmed. The idea behind the law is that the person who takes the bribe has a duty to someone else, such as citizens.
Percoco argues that this is a case in which “federal integrity prosecutors [were] get loose and get away with it. In that case, the federal appeals court, he wrote, “held that private citizens may owe a fiduciary duty to the public and therefore be guilty of honest service fraud.”
The appeals court concluded that “if a jury finds that a private person de facto wields sufficient influence over government decision-making or that state officials rely on him or her sufficiently, the jury may send to prison for corruption even though he had no official title, no official power, and no official function.
This “expansion of federal bribery law is both wrong and dangerous,” Percoco says in its motion, adding that the Supreme Court “should stop this pernicious theory in its tracks.”
The high court is expected to hear oral arguments in the case during its new term which begins in October.