Skip to content
National Association of Attorneys General
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us
National Association of Attorneys General
  • Find My AG
  • Consumer Complaints
  • Member Benefits
  • Contact Us
Log In
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us

Supreme Court Report: Percoco v. United States, 21-1158

Home / Supreme Court / Supreme Court Report: Percoco v. United States, 21-1158
July 12, 2022 Supreme Court
Share this

  • Dan Schweitzer
    Director, Center for Supreme Court Advocacy
    National Association of Attorneys General

Volume 29, Issue 21

This Report summarizes cases granted review on June 27 and 30, 2022 (Part II).

Case Granted Review: Percoco v. United States, 21-1158

Percoco v. United States, 21-1158. At issue is whether “a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owe[s] a fiduciary duty to the general public such that he can be convicted of honest-services fraud.” Joseph Percoco served as then-Governor Andrew Cuomo’s Executive Deputy Secretary. He left that job to manage Governor Cuomo’s reelection campaign, but he still used his Executive Chamber office and represented that he ”had a guaranteed position with Cuomo’s administration after the election.” While Percoco was working on the campaign (and thus no longer employed by the government), he was approached by Steven Aiello, who wanted state officials to excuse his company, COR Development (COR), from having to enter a costly agreement with a local union, known as a labor peace agreement (LPA). After receiving $35,000 from Aiello, Percoco reached out to a state official to press him to waive the LPA. The state official interpreted the call as “pressure” from one of his “principals.” State officials later reversed their position and waived the LPA. In November 2016, Percoco was charged with a number of federal offenses, including conspiring to commit honest-services wire fraud, see 18 U.S.C. §§1346, 1349, in connection with his efforts on behalf of COR. Percoco moved to dismiss the COR charges on the ground that he could not commit these offenses when he was out of public office. The district court denied the motion, and a jury convicted Percoco of honest-services fraud conspiracy. The Second Circuit affirmed the conviction. 13 F.4th 180.

The Second Circuit panel relied on its precedent, United States v. Margiotta, 688 F.2d 108 (1982). The court reasoned that “the statute’s capacious language is certainly broad enough to cover the honest services that members of the public are owed by their fiduciaries, even if those fiduciaries happen to lack a government title and salary.” The court stated that “[i]n our view, §1346 covers those individuals who are government officials as well as private individuals who are relied on by the government and who in fact control some aspect of government business.” The panel concluded that Percoco owed a fiduciary duty to the public because he “maintained” a “position of power and trust in the state,” attributable to his “unique relationship with Governor Cuomo,” “being close to him and his family,” the likelihood that he would regain the same position after the campaign, and his continued access to the Governor’s Office. And the panel found sufficient evidence that Percoco had agreed to take official action by calling the agency about the LPA.

Percoco argues in this petition that “[u]nder the decision below, the only thing separating lawful lobbying from illegal bribery is a jury’s finding that the lobbyist’s de facto control or others’ ‘reliance’ on him crossed some unspecified line. An entire industry—one engaged in core First Amendment activity, at that—is thus placed in the prosecutorial crosshairs.” He maintains that “[i]t is public officials—alone—who represent the public and owe duties to act in its best interest.” Percoco insists that Margiotta and the Second Circuit decision in his case conflict with Skilling v. United States, 561 U.S. 358 (2010), “which sharply narrowed the scope of honest-services fraud under 18 U.S.C. §1346 to ‘heartland’ cases” or bribes and kickbacks “to avoid constitutional concerns.” Yet “[t]he Second Circuit’s recognition of the right to honest government as a basis for a fraud conviction of a private citizen extended the statute to new bounds—without question outside the realm of the ‘paramount’ or ‘heartland’ cases that survive Skilling.” Percoco adds that the Second Circuit decision conflicts with principles of lenity and federalism, and “threatens to chill protected speech of politically active individuals, harming their ability to petition the government and impeding public officials’ ability to hear from and make decisions based on the voices of their constituents.” And, he says, the Second Circuit’s “reasoning ‘lodge[d] unbridled power in federal prosecutors to prosecute political activists’ and created ‘the potential for abuse through selective prosecution.’”

The United States responds that “[t]he lower courts correctly eschewed an invariable requirement that a person ‘have a formal employment relationship with the state in order to owe . . . a duty of honest services to the public.’ A person who lacks such a relationship can still owe such a duty in limited circumstances.” (Citation omitted.) It notes that “Section 201, which likewise informs the scope of honest-services fraud, defines a ‘‘public official’ subject to federal bribery law to include not only ‘an officer or employee,’ but also a ‘person acting for or on behalf of the United States . . . in any official function.’ 18 U.S.C. 201(a)(1); see Skilling, 561 U.S. at 412. As this Court has recognized, Section 201’s text is therefore not limited to ‘persons in a formal employment or agency relationship with the Government.’ Dixson v. United States, 465 U.S. 482, 494 (1984).” The United States maintains that “[t]he evidence showed that Percoco was ‘in reality’ a public official at the time of the bribery scheme at issue. Although Percoco had nominally left his post in the Executive Chamber, he in fact continued to carry out that role: he ‘held onto and used his Executive Chamber telephone, desk, and office’; he ‘continued to conduct state business’; and he ‘maintained control over official matters.’ In fact, Percoco ‘was at his desk in the Executive Chamber’ when he called another state official to pressure him to waive the required labor peace agreement.” (Citations omitted.) And so the United States says the Second Circuit decision does not “raise First Amendment concerns. Percoco was not, as petitioners suggest, a ‘private citizen’ who received money to ‘lobby the government’; he was a high-ranking government official who continued to oversee official business despite taking an effective leave of absence from his post, and he accepted large bribes in return for wielding his authority to pressure subordinate government officials to perform official acts.” (Citations omitted.)

Related Posts

Related Posts

Supreme Court Report, Volume 31, Issue 20

Supreme Court Report, Volume 31, Issue 13

Supreme Court Report, Volume 32, Issue 6

Connect with NAAG and the Attorney General Community

Create a NAAG account to subscribe to our newsletters or mailing lists.

Create Account
Subscribe
Marble columns and the top of a federal building

scroll to filters

White Logo for the National Association of Attorneys General

1850 M Street NW
12th floor
Washington, DC 20036

TEL 202-326-6000
EMAIL 

Youtube
  • Issues
    • Issues
      • Anticorruption
      • Antitrust
      • Bankruptcy
      • Charities
      • Civil Law
    • Issues
      • Consumer Protection
      • Criminal Law
      • Cyber and Technology
      • Disaster Preparedness & Response
      • Elder Justice
    • Issues
      • Ethics
      • Human Trafficking
      • Medicaid Fraud
      • Opioids
      • Powers & Duties
    • Issues
      • Public Health
      • The U.S. Supreme Court
      • Tobacco
      • Veterans & Military
  • Our Work
    • Training & Research
    • Centers
      • Center for Consumer Protection
      • Center for Supreme Court Advocacy
      • Center for Tobacco & Public Health
    • Committees
    • Initiatives
      • Presidential Initiative
      • Strategic Partnerships
      • International Fellows
      • COVID-19
    • Bankruptcy
    • Policy & Advocacy
  • Events & Training
    • Event Calendar
    • Attorney General Symposium
    • Presidential Summit
    • Capital Forum
    • Region Meetings
    • CLE Credit
    • NAAG Trainings
    • Online Learning
    • NAMFCU Trainings
    • NAAG Faculty
  • News & Resources
    • Attorney General Journal
    • Reports & Publications
    • Newsroom
    • NAAG Policy Letters
    • Podcasts
    • Online Learning
    • Research & Data
    • Member Directory
  • Attorneys General
    • What Attorneys General Do
    • Who is my Attorney General?
    • Attorneys General Office 101
    • Research & Data
    • Awards & Recognition
    • Careers in Attorney General Offices
    • Careers in Medicaid Fraud Control Units
  • About NAAG
    • NAAG Staff
    • NAAG Leadership
    • NAAG Member Services
    • NAAG Regions
    • NAAG FAQs
    • SAGE
    • NAMFCU
    • Newsroom
    • Careers at NAAG
  • Find my AG
  • About NAMFCU
    • About the Medicaid Fraud Control Units
    • Reporting Fraud and Abuse
    • MFCU Member Hub
    • Careers with a MFCU
  • Contact Us
  • Find My AG
  • Consumer Complaints
  • Member Benefits
  • Contact Us
  • Accessibility Statement
  • Privacy & Cookies Notice
  • Sitemap
  • Member Login

About the National Association of Attorneys General

As the nonpartisan national forum for America's state and territory attorneys general and their staff, NAAG provides collaboration, insight, and expertise to empower and champion America's attorneys general.
Learn More

© 2025 Copyright National Association of Attorneys General

Website by Yoko Co

Internal Feedback / Report an Error

Request an Update / Report an Error

The change you are requesting will be linked to this page. The URL for the page will be included in a hidden field when the form is submitted.
Please enter your change or describe your request. Be sure to reference where the error appears on the page and what needs to be done specifically.
Upload any files that need to be linked to this page. PDF only. Submit another request if you have more than five files to upload.
Drop files here or
Accepted file types: pdf, docx, xls, Max. file size: 50 MB, Max. files: 5.

    Who is requesting this change?(Required)

    Scroll To Top
    To provide you more clarity about how we collect, store and use personal information, and your rights to control that information, we have updated our privacy policy, which also explains how we use cookies. You consent to our cookies if you continue to use our website.I Agree