Percoco v. United States
Issues
Does an individual owe a fiduciary duty to the public that can serve as the basis of an honest-services fraud conviction under 18 U.S.C. § 1346, notwithstanding the fact that the individual does not have an official government position but only informal influence over government decisionmaking?
This case asks the Court to analyze 18 U.S.C. § 1346, the honest-services fraud statute, and determine if an individual with informal power but no official governmental position can violate the statute. Joseph Percoco and Steven Aiello argue that private individuals lacking formal governmental power cannot commit honest-services fraud because they do not owe the public a duty of honest services. Percoco and Aiello further argue that including private individuals within § 1346 would render the statue unconstitutionally vague, violate the First Amendment, and entrench upon state sovereignty. The United States contends that private individuals can commit honest-services fraud when they have been selected for public office and when they are de facto officeholders in all but name. The United States also argues that § 1346 clearly defines improper behavior and does not limit First Amendment activity. This case touches on important questions regarding lobbying, free speech, and the interaction of state and federal bribery laws.
Questions as Framed for the Court by the Parties
Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.
Petitioner Joseph Percoco served as Executive Deputy Secretary under former Governor Andrew Cuomo from 2011 until 2016, except for eight months in 2014 while Percoco ran the Governor’s reelection campaign. United States v. Percoco at 5. This position required managing both intergovernmental and legislative matters.
Additional Resources
- Robert J. Anello and Richard F. Albert, Chastening the Prosecutor’s Darlings? SCOTUS to Assess ‘Right to Control’ and Honest Services Fraud, New York Law Journal (Aug. 10, 2022.)
- Luc Cohen, U.S. Supreme Court to hear ex-Cuomo aide’s appeal of bribery conviction, Reuters Legal (June 20, 2022).
- Edward F. Novak and Matthew L. Hickman, Supreme Court to Hear Cases That Could Further Narrow Federal Fraud Statutes, The National Law Review (July 5, 2022).
- Rebekah Yeager-Malkin, U.S. Supreme Court to hear fraud case involving former Cuomo campaign manager, Jurist (July 2, 2022).