Joe Percoco, former top aide to New York Governor Andrew Cuomo, leaves federal court after being sentenced to six years in prison for corruption charges, September 20, 2018 in New York City. (Photo by Drew Angerer/Getty Images)
The Supreme Court on Thursday toppled the conviction of Joseph Percoco, an ex-deputy of former New York Gov. Andrew Cuomo. One of a pair of unanimous rulings, the high court’s opinions fall among a spate of cases making it more difficult for federal prosecutors to bring public corruption cases.
Former Manhattan U.S. Attorney Preet Bharara brought the cases against Percoco and contractor Louis Ciminelli as part of a series of prosecutions that captivated New York’s tabloids under the banner “Albany on Trial.” His office brought down the then-leaders of both branches of the Empire State’s legislature: now-disgraced Democratic Assembly Speaker Sheldon Silver and Republican Senate Majority Leader Dean Skelos.
Bharara then turned his attention to the executive mansion, prosecuting Percoco, then-sitting Gov. Cuomo’s former top aide and family friend, for allegedly taking illegal payments to benefit a Syracuse-area developer. Ciminelli was convicted in connection with a bid-rigging scandal involving a project known as “Buffalo Billions,” a Cuomo-backed development project.
All of the prosecutions ended in jury convictions, as well as protracted appeals. Silver’s failed, but Skelos initially found success in the wake of the Supreme Court’s ruling in McDonnell v. United States, which narrowed the definition of what constituted an official act.
In that case, ex-Virginia Gov. Bob McDonnell (R) was prosecuted for setting up a meeting with a donor who gave him more than $135,000 in gifts, including a Rolex watch, loans, and trips. A jury found him guilty of quid pro quo, but the high court found that a meeting didn’t constitute an official act. Skelos used that precedent to secure a retrial, in which he was convicted again under the revised standard.
Now, the legacy of that series of New York anti-corruption prosecutions faces another high court hiccup.
In a ruling authored by Justice Samuel Alito, the court noted that Percoco didn’t have a government job, but he was managing Cuomo’s campaign, at the time of the conduct at issue.
“In this case, we consider whether a private citizen with influence over government decision-making can be convicted for wire fraud on the theory that he or she deprived the public of its ‘intangible right of honest services,”” the first line of the opinion states.
Percoco’s attorneys argued that private citizens generally could not, but the Supreme Court found that the proposed rule would “sweep too broadly.”
“Rejecting this absolute rule, however, is not enough to sustain Percoco’s convictions on the wire fraud conspiracy counts,” Alito wrote.
The panel found that the jury received improper instructions on how to hash out that issue.
In Ciminelli’s case, Justice Clarence Thomas — under fire for money and gifts he received from Republican megadonor Harlan Crow — targeted the “right-to-control” theory, holding that someone can be found guilty of wire fraud for scheming to deprive the victim of “potentially valuable economic information” needed for “discretionary economic decisions.”
His opinion, however, found that the “federal fraud statutes criminalize only schemes to deprive people of traditional property interests.”
The Southern District of New York declined to comment.
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