May 11, 2023
Decided May 11, 2023
Percoco v. United States, No. 21-1158
Today, the Supreme Court overturned a wire fraud conviction based on an honest-services theory. The Court reasoned that while such a theory can potentially cover private persons, it does not extend to all private persons. The jury instructions given in this case were too vague because they failed to define the intangible right to honest services with sufficient definiteness.
Background: Joseph Percoco resigned from his position in New York state government to serve in a private capacity as then-Governor Andrew Cuomo’s campaign manager. Despite lacking an official government position, he continued to wield significant influence in the Cuomo administration. Recognizing that, an acquaintance paid Percoco $35,000 to have him pressure a state agency to drop a requirement that would have forced the acquaintance’s company to enter a costly agreement with a local union.
Federal prosecutors indicted Percoco under the honest-services component of the federal wire-fraud statute, which proscribes “depriv[ing] another of the intangible right of honest services.” 18 U.S.C. § 1346. The statute is typically invoked in public-corruption cases involving public officials who take money in exchange for exercising their official power. But the Second Circuit concluded that the statute is broad enough to encompass Percoco’s situation: a private citizen who takes money in exchange for wielding his substantial influence over government officials to persuade those officials to exercise their official powers in a certain way.
Issue: Whether private citizens can be convicted of depriving the public of honest services.
Potentially yes, because there is no absolute rule that would preclude convicting a private citizen under an honest-services theory (such as where a private citizen has become an actual agent of the government). But the conviction at issue could not be upheld because the jury instructions were too vague.
“‘[T]he intangible right of honest services’ codified in § 1346 plainly does not extend a duty to the public to all private persons.”
Justice Alito, writing for the Court
What It Means:
The Court’s opinion is available here.
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