Court throws out conviction of former Cuomo aide
OPINION ANALYSIS
on May 11, 2023
at 3:22 pm
The Supreme Court on Thursday reversed the conviction of Joseph Percoco, the manager of former New York Gov. Andrew Cuomo’s re-election campaign who was sentenced to six years in prison after he took money in exchange for helping to facilitate a real estate development. Percoco was convicted of violating a federal fraud law that makes it a crime to deprive members of the public of the intangible right to “honest services.” But in a unanimous ruling, the justices threw out Percoco’s conviction, holding that the jury instructions used to convict him were too vague.
The ruling was the latest in a series of cases, dating back more than a decade, in which the justices have narrowed the reach of federal public-corruption laws.
Percoco spent nearly five years working as a senior aide to Cuomo in the governor’s office. But he was managing Cuomo’s re-election campaign in 2014 when a real estate developer paid him $35,000 for his help in avoiding having to enter into a “labor peace agreement” with local unions. Shortly before he officially returned to the governor’s office, Percoco called the head of a state development agency and urged him to let the development go forward without the agreement; just one day later, state officials reversed their decision that the developer needed to reach an agreement with the unions.
Before his 2018 trial, Percoco asked the judge to dismiss the “honest services” charge against him, arguing that a private citizen cannot be convicted of depriving the public of its right to honest services. The court rejected that request, and Percoco was convicted and sentenced to a total of six years in prison. The U.S. Court of Appeals for the 2nd Circuit upheld his conviction.
In an opinion by Justice Samuel Alito, the Supreme Court on Thursday threw out Percoco’s conviction. Like the lower courts before them, the justices declined to adopt a bright-line rule holding that private citizens can never have the kind of fiduciary responsibility to the public that would allow them to be held liable for depriving the public of its right to their honest services.
Percoco’s conviction still cannot stand, the justices ruled, because the instructions that the trial judge gave to the jury in his case were too vague. The judge told the jury, Alito observed, that Percoco “owed a duty of honest services to the public if (1) he ‘dominated and controlled any governmental business’ and (2) ‘people working in the government actually relied on him because of’” his relationship with the government. But that standard does not, Alito continued, provide enough information about what conduct is or is not allowed, nor does it shield against arbitrary enforcement by prosecutors.
Justice Neil Gorsuch filed a separate opinion, joined by Justice Clarence Thomas, in which he agreed with his colleagues’ decision to throw out Percoco’s conviction because the jury instructions were too vague. But Gorsuch expressed a broader concern with the charges against Percoco, writing that “no set of instructions could have made things any better” because the entire concept of “honest services” fraud is too vague and uncertain. That is not the Supreme Court’s fault, Gorsuch stressed, but instead Congress’s. Even if Congress had good intentions when it passed the law, Gorsuch wrote, “it must do more than invoke an aspirational phrase and leave it to prosecutors and judges to make things up as they go along.”
