Supreme Court sides with Cuomo aide Joseph Percoco in corruption case

The Supreme Court on Thursday voided a 2018 fraud conviction against Joseph Percoco, a one-time top aide and confidant to Gov. Andrew Cuomo, in a unanimous decision that reduced federal prosecutors’ power to pursue public corruption cases in state government.

Siding with Percoco, who was sentenced in Manhattan Federal Court to six years in prison but released to a halfway house in 2021, the Supreme Court found that erroneous jury instructions had fatally flawed the conviction.

Percoco was convicted of honest-services fraud, a federal crime typically applied to officials or executives in bribery schemes. The case centered on payments Percoco received in 2014, during a break in his tenure as a top official under Cuomo.

Percoco referred to payments he received as “ziti,” a reference to a term used to describe bribes in the TV show “The Sopranos,” according to the Justice Department.

Justice Samuel Alito said in the Supreme Court’s majority opinion that the jury should not have been told to weigh whether Percoco had a “special relationship” with the government in the case.

“We conclude that this is not the proper test for determining whether a private person may be convicted of honest-services fraud, and we therefore reverse and remand for further proceedings,” Alito said in the opinion.

In a concurring opinion, Justice Neil Gorsuch went further, saying that “the problem runs deeper” than the jury instructions, “because no set of instructions could have made things any better.”

“To this day, no one knows what ‘honest-services fraud’ encompasses,” Gorsuch wrote. “And the Constitution’s promise of due process does not tolerate that kind of uncertainty in our laws.”

In his opinion, Gorsuch called on Congress to clarify the meaning of the 1988 honest-service fraud statute, and urged the courts to “decline further invitations to invent rather than interpret this law.”

Justice Clarence Thomas joined Gorsuch in the concurring opinion.

A lawyer for Percoco, Yaakov Roth, issued a statement praising the court, saying that its decision underscored that the government “cannot use vague fraud statutes to advance novel and sweeping theories in prosecutions of political actors.”

Roth added that his client had been the victim of “an abuse of the federal fraud statutes” and a blurring of the “fundamental line between private citizens and public officials.”

Percoco, 54, was once perhaps Cuomo’s closest aide, and the Democratic governor compared him to family. Cuomo resigned in 2021, bowing to a double-digit deluge of sexual harassment allegations and a scandal related to the counting of COVID deaths.

Cuomo did not immediately respond publicly to the Supreme Court decision on Thursday.

His spokesman, Rich Azzopardi, said in a text: “Personally, I’m happy for Joe and his family and this unanimous ruling lays bare what this all was, Preet Bharara and Joon Kim’s abuse of the system and prosecutorial overreach in order to advance a political vendetta.”

Bharara and Kim are both former prosecutors in the U.S. attorney’s office for the Southern District of New York. Neither Bharara nor Kim immediately replied to requests for comment.