On Monday, November 28, the U.S. Supreme Court will hear Percoco v. United States, a case involving the “honest-services fraud statute” and whether a private citizen can be convicted for bribery and fraud. The case involves a former New York state official, Joseph Percoco, who at the time managed the campaign of then-Governor Andrew Cuomo. Before managing the campaign, Mr. Percoco previously served as an aide to Governor Cuomo for five years and then returned to work for Governor Cuomo after the acts in question.
A real estate developer paid Mr. Percoco $35,000, allegedly seeking Mr. Percoco’s help to obtain approval for a project. In 2014, just days before Mr. Percoco returned to work for Gov. Cuomo again after the campaign, Mr. Percoco called a state development agency and requested that the agency proceed with the project. According to some coverage of the case, “after the call, the agency head told another agency executive that he was receiving ‘pressure’ from his ‘principals.’ The next day, state officials reversed the decision that the developer needed to reach an agreement with the unions.”
Though Mr. Percoco was no longer a government official at the time of the alleged bribes, the prosecutors’ case argued that he was essentially a public official. According to one news report “Prosecutors say Mr. Percoco was ‘functionally a public official’ because he commanded clout with state agencies and therefore committed honest-services fraud by allegedly accepting a bribe. Congress defined a ‘scheme or artifice to defraud’ to include ‘a scheme or artifice to deprive another of the intangible right of honest services.'”
Coverage of Mr. Percoco’s conviction explained that: “The New York-based 2nd U.S. Circuit Court of Appeals in 2021 upheld his conviction, finding that Percoco had a guaranteed job in Cuomo’s administration post-election and in the interim exercised enough influence over government decision-making to owe a duty to the public.
Percoco’s lawyers have taken the position that because Mr. Percoco was a private citizen, even if he had served in government and still had strong connections with elected officials, his work was as a lobbyist, and that affirming the conviction could lead to criminal charges being brought against former government officials who later serve as lobbyists. According to some coverage “Percoco also cautions that the 2nd Circuit’s rule could have sweeping implications not only for lobbyists and donors but also for the family members of public officials, who “hold unparalleled access and influence” and whose “independent business interests may be in a position to benefit from state action.”
In 2018, Mr. Percoco was sentenced to six years in prison. The Supreme Court is expected to rule by June 2023.
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