Percoco v. United States

Background

Joseph Percoco, a longtime top aide to New York’s Governor, left government briefly in 2014 to run the Governor’s campaign. While off the job, he accepted $35,000 from developer Steven Aiello to assist with a state agency’s labor‑peace requirement. Percoco called a senior official at Empire State Development, which then dropped the requirement. The Department of Justice indicted Percoco and the jury was instructed under the Second Circuit’s Margiotta test; the jury convicted him on the honest‑services wire fraud conspiracy count.

Reasoning

The Court considered whether a private citizen who influences government may be convicted of depriving the public of its “intangible right of honest services.” It reviewed Margiotta, McNally, Congress’s enactment of 18 U.S.C. §1346, and Skilling’s narrowing of the honest‑services concept to core bribery and kickback cases. The Court rejected a rule that private persons can never owe a public fiduciary duty, but found that the Margiotta‑based jury instructions were too vague to define that duty. The Court reversed the conviction on that theory and remanded for further proceedings, noting the government’s alternative theories differed from the instructions given.

Real world impact

The decision constrains prosecutions that rely on the Margiotta “dominate and control” test and signals that clearer standards are required when charging politically connected private actors. It may lead to reversal of convictions based on similar vague instructions. The ruling is not a final merits resolution and the case returns to lower courts for further proceedings.

Dissents or concurrances

Justice Gorsuch, joined by Justice Thomas, concurred in the judgment and argued the problem is deeper: §1346 remains unworkably vague and only Congress can give the clarity required to protect due process.