By Luc Cohen
(Reuters) -The U.S. Supreme Court on Thursday agreed to hear a bid by a former aide to New York state ex-Governor Andrew Cuomo to overturn his bribery conviction on the basis that influential private citizens cannot be prosecuted on public corruption charges.
The justices took up an appeal by Joseph Percoco, who was convicted in 2018 in Manhattan federal court on bribery and conspiracy charges for taking payments from an energy company executive and two real estate developers seeking favorable treatment for their projects. Prosecutors called him Cuomo’s “right-hand man.”
The New York-based 2nd U.S. Circuit Court of Appeals upheld Percoco’s conviction on appeal. Percoco argued that because he was managing Cuomo’s campaign at the time, he was not employed by the state and thus did not owe a fiduciary duty to the public. Percoco previously served as Cuomo’s executive deputy secretary. He managed Cuomo’s re-election campaign in 2014.
In a Feb. 17 petition to the Supreme Court, Percoco’s lawyers said the 2nd Circuit’s decision posed a threat to the constitutional right to free speech and opened the floodgates to prosecution of legal lobbying activity.
“The notion that private citizens owe a duty of honest services to the public so long as a jury deems them sufficiently influential finds no basis in law or common sense,” Percoco’s lawyers wrote.
Lawyers for the prosecution have said Percoco still had a “duty to provide honest services” to the public because his position as campaign manager was temporary and he was likely to return to the Cuomo administration after the election. They said Percoco worked at his statehouse office during the campaign.
The ability to charge private citizens with honest services fraud is often important for prosecutors seeking to prove quid pro quo arrangements between officials and their supporters, said Jennifer Beidel, a former federal prosecutor. Quid pro quo is a Latin term meaning a favor for a favor.
“The theory allows public corruption prosecutors to connect disparate acts that the corrupt actors are keeping disconnected on purpose to avoid detection,” Beidel said.
The Supreme Court also took up an appeal brought by Buffalo-based developer Louis Ciminelli, who was convicted of wire fraud as part of the same sprawling case.
Steven Aiello and Joseph Gerardi, the real estate developers accused of paying bribes have appeals pending at the court. Aiello was convicted on one count of conspiracy, while Gerardi was acquitted. Former state university official Alain Kaloyeros, who was convicted of wire fraud in connection with the scheme, also has an appeal pending.
Cuomo, a Democrat, was not charged in the scheme. He resigned in 2021 following an inquiry that found he sexually harassed 11 women, though he denied wrongdoing.
(Reporting by Luc Cohen in New York; Editing by Will Dunham)
