Joe Percoco, former top adviser to New York Gov. Andrew Cuomo, exits federal court September 20, 2018 in New York City after being sentenced to six years in prison on corruption charges. (Photo by Drew Angerer/Getty Images)
The Supreme Court on Thursday overturned the conviction of Joseph Percoco, a former deputy to former New York Gov. Andrew Cuomo. One of two unanimous rulings, the Supreme Court’s opinion comes amid a spate of cases that are making it harder for federal prosecutors to pursue public corruption cases.
Former Manhattan Attorney Preet Bharara filed a lawsuit against Percoco and contractor Louis Ciminelli as part of a series of “Albany on trial” prosecutions that captivated New York tabloids. His office brought down the then-leaders of both branches of the Empire State legislature: the now-disgraced Speaker of the Democratic Assembly, Sheldon Silver, and Republican Senate Majority Leader, Dean Skelos.
Bharara then turned his attention to the administration building and sued Percoco, then-Governor Cuomo’s former top adviser and family friend, for allegedly accepting illegal payments on behalf of a project developer in the Syracuse area. Ciminelli was convicted in connection with a bid scandal surrounding a project called Buffalo Billions, a Cuomo-backed development project.
All trials ended in jury convictions and lengthy appeals. Silver failed, but Skelos initially succeeded after the Supreme Court ruling in McDonnell v. United States, which narrowed the definition of what constitutes an official act.
In this case, former Virginia Gov. Bob McDonnell (R) was prosecuted for arranging a meeting with a donor who had given him gifts worth over $135,000, including a Rolex watch, in credits and travel. A jury found him guilty by quid pro quo, but the Supreme Court found that meeting did not constitute an official act. Skelos used this precedent to secure a retrial, where he was retried under the revised standard.
Now the legacy of this series of anti-corruption lawsuits in New York faces another hiccup in the Supreme Court.
In a ruling authored by Judge Samuel Alito, the court found that Percoco was not in a government job at the time of the conduct in question, but was running Cuomo’s campaign.
“In this case, we are examining whether a private individual with influence on government decision-making can be convicted of wire fraud for depriving the public of their ‘intangible right to honest services,'” reads the first line of the Opinion said.
Percoco’s lawyers argued that private individuals generally could not, but the Supreme Court found the proposed rule was “too sweeping”.
“However, denying this absolute rule is insufficient to uphold Percoco’s conviction regarding the wire fraud conspiracy cases,” Alito wrote.
The panel found that the jury had received incorrect instructions on how to resolve this issue.
In the Ciminelli case, Judge Clarence Thomas — who was under fire for funds and gifts he received from Republican mega-donor Harlan Crow — took to the “right to control” theory, holding that someone can be found guilty of wire fraud , because he planned to deprive the victim of money for “potentially valuable economic information” needed for “discretionary economic decisions”.
However, in his op-ed, he concluded that “state fraud laws only criminalize schemes designed to deprive people of their traditional property interests.”
The Southern District of New York declined to comment.
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