(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PERCOCO v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 21–1158. Argued November 28, 2022—Decided May 11, 2023
Petitioner Joseph Percoco served as the Executive Deputy Secretary to
New York Governor Andrew Cuomo from 2011 to 2016, a position that
gave him a wide range of influence over state decision-making, with
one brief hiatus. During an eight-month period in 2014, Percoco re-
signed from government service to manage the Governor’s reelection
campaign. During this hiatus, Percoco accepted payments totaling
$35,000 to assist a real-estate development company owned by Steven
Aiello in its dealings with Empire State Development, a state agency.
After Percoco urged a senior official at ESD to drop a requirement that
Aiello’s company enter into a “Labor Peace Agreement” with local un-
ions as a precondition to receiving state funding for a lucrative project,
ESD informed Aiello the following day that the agreement was not nec-
essary. When Percoco’s dealings came to the attention of the U. S. De-
partment of Justice, he was indicted and charged with, among other
things, conspiracy to commit honest-services wire fraud in relation to
the labor-peace requirement (count 10). See 18 U. S. C. §§1343, 1346,
1349. Throughout the proceedings, Percoco argued unsuccessfully that
a private citizen cannot commit or conspire to commit honest-services
wire fraud based on his own duty of honest services to the public. Over
Percoco’s objection, the trial court instructed the jury that Percoco
could be found to have had a duty to provide honest services to the
public during the time when he was not serving as a public official if
the jury concluded, first, that “he dominated and controlled any gov-
ernmental business” and, second, that “people working in the govern-
ment actually relied on him because of a special relationship he had
with the government.” As relevant here, the jury convicted Percoco on
count 10. On appeal, the Second Circuit affirmed, explaining that the
challenged jury instruction fit the Second Circuit’s understanding of
2 PERCOCO v. UNITED STATES
Syllabus
honest-services fraud as adopted many years earlier in United States
v. Margiotta, 688 F. 2d 108.
Held: Instructing the jury based on the Second Circuit’s 1982 decision in
Margiotta on the legal standard for finding that a private citizen owes
the government a duty of honest services was error. Pp. 5–12.
(a) Prior to this Court’s 1987 decision in McNally v. United States,
483 U. S. 350, “all Courts of Appeals had embraced” the view that the
federal wire fraud and mail fraud statutes proscribe what came to be
known as “honest-services fraud.” Skilling v. United States, 561 U. S.
358, 401. Most cases prosecuted under these statutes involved public
employees accepting a bribe or kickback that did not necessarily result
in a financial loss for the government employer but did deprive the
government of the right to receive honest services. See id., at 400–401.
The Second Circuit considered a different fact pattern in Margiotta, in
which the government had charged an unelected individual with hon-
est-services mail fraud for using his position as a political-party chair
to exert substantial control over public officials. The court held that a
private person could commit honest-services fraud if he or she “domi-
nate[d] government.” 688 F. 2d, at 122. Shortly after Margiotta, how-
ever, this Court rejected the entire concept of honest-services fraud in
McNally. But “Congress responded swiftly” to McNally, and enacted
18 U. S. C. §1346, which provides that “ ‘the term “scheme or artifice
to defraud,” ’ ” which appears in both §1341 and §1343, “ ‘includes a
scheme or artifice to deprive another of the intangible right of honest
services.’ ” Skilling, 561 U. S., at 402 (quoting §1346). Decades later
in Skilling, this Court rejected the broad argument that §1346 is un-
constitutionally vague and clarified that “the intangible right of honest
services” in §1346 relates to “fraudulent schemes to deprive another of
honest services through bribes or kickbacks supplied by a third party
who had not been deceived.” 561 U. S., at 404.
Skilling’s approach informs the Court’s decision in this case. The
Second Circuit concluded that “Congress effectively reinstated the
Margiotta-theory cases by adopting statutory language that covered
the theory.” 13 F. 4th 180, 196. But Skilling took care to avoid giving
§1346 an indeterminate breadth that would sweep in any conception
of “intangible rights of honest services” recognized by some courts prior
to McNally. By rejecting the Government’s argument that §1346
should apply to cases involving “ ‘undisclosed self-dealing by a public
official or private employee,’ ” 561 U. S., at 409, the Skilling Court
made clear that “the intangible right of honest services” must be de-
fined with the clarity typical of criminal statutes and should not be
held to reach an ill-defined category of circumstances simply because
of a few pre-McNally decisions. Pp. 5–8.
(b) Percoco’s arguments challenging the honest-services conspiracy
Cite as: 598 U. S. ____ (2023) 3
Syllabus
count against him—that he was out of public office during part of the
time period within the indictment and that a private citizen cannot be
convicted of depriving the public of honest services—sweep too
broadly. The Court rejects the idea that a person nominally outside
public employment can never have the necessary fiduciary duty to the
public. Through principles of agency, an individual who is not a formal
employee of a government may become an actual agent of the govern-
ment by agreement, and thereby have a fiduciary duty to the govern-
ment and thus to the public it serves. While the Court rejects the ab-
solute rule, “the intangible duty of honest services” codified in §1346
plainly does not extend a duty to the public to all private persons, and
the Court therefore addresses if Margiotta states the correct test. Pp.
8–9.
(c) The jury instructions based on the Margiotta theory in Percoco’s
case were erroneous. Margiotta’s standard in the instructions—imply-
ing that the public has a right to a private person’s honest services
whenever that private person’s clout exceeds some ill-defined thresh-
old—is too vague. Without further constraint, the jury instructions
did not define “the intangible right of honest services” “ ‘with sufficient
definiteness that ordinary people can understand what conduct is pro-
hibited’ ” or “ ‘in a manner that does not encourage arbitrary and dis-
criminatory enforcement.’ ” McDonnell v. United States, 579 U. S. 550,
576.
The Government does not defend the jury instructions as an accu-
rate statement of the law, but instead claims that the imprecision in
the jury instructions was harmless error. The Government argues
that a private individual owes a duty of honest services in the discrete
circumstances (1) “when the person has been selected to work for the
government” in the future and (2) “when the person exercises the func-
tions of a government position with the acquiescence of relevant gov-
ernment personnel.” Brief for United States 25. These theories, how-
ever, differ substantially from the instructions given the jury in this
case, and the Second Circuit did not affirm on the basis of either of
them. Pp. 9–12.
13 F. 4th 180, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined, and in
which JACKSON, J., joined as to all but Part II–C–2. GORSUCH, J., filed
an opinion concurring in the judgment, in which THOMAS, J., joined.
Cite as: 598 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1158
_________________
JOSEPH PERCOCO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 11, 2023]
JUSTICE ALITO delivered the opinion of the Court.*
In this case, we consider whether a private citizen with
influence over government decision-making can be con-
victed for wire fraud on the theory that he or she deprived
the public of its “intangible right of honest services.”
18 U. S. C. §§1343, 1346. Petitioner Joseph Percoco was
charged with conspiring to commit honest-services wire
fraud during a period of time that included an eight-month
interval between two stints as a top aide to the Governor of
New York. Percoco was convicted of this offense based on
instructions that required the jury to determine whether he
had a “special relationship” with the government and had
“dominated and controlled” government business. 2 App.
511. We conclude that this is not the proper test for deter-
mining whether a private person may be convicted of hon-
est-services fraud, and we therefore reverse and remand for
further proceedings.
I
Percoco was a longtime political associate of former New
——————
* JUSTICE JACKSON joins all but Part II–C–2 of this opinion.
2 PERCOCO v. UNITED STATES
Opinion of the Court
York Governor Andrew Cuomo. Except for a brief but im-
portant hiatus in 2014, Percoco served as the Governor’s
Executive Deputy Secretary from 2011 to 2016, and that
position gave him a wide range of influence over state deci-
sion-making. In April 2014, Percoco resigned from this po-
sition to manage the Governor’s reelection campaign, but
after the Governor was reelected, he resumed his role as
Executive Deputy Secretary in December 2014.
The question we address today arises from Percoco’s ac-
tivities during his break in government service. In July
2014, Empire State Development (ESD), a state agency, in-
formed developer Steven Aiello that his real-estate com-
pany, COR Development, needed to enter into a “Labor
Peace Agreement” with local unions if he wished to receive
state funding for a lucrative project. Id., at 597. Interested
in avoiding the costs of such an agreement, Aiello reached
out to Percoco through an intermediary so that Percoco
could “help us with this issue while he is off the 2nd floor,”
i.e., the floor that housed the Governor’s office. Id., at 594.
Percoco agreed and received two payments totaling $35,000
from Aiello’s company in August and October 2014. On De-
cember 3, mere days before returning to his old job, Percoco
called a senior official at ESD and urged him to drop the
labor-peace requirement. ESD promptly reversed course
the next day and informed Aiello that the agreement was
not necessary.
Percoco’s dealings in this and other matters later came to
the attention of the United States Department of Justice,
which obtained a multi-count indictment against Percoco
and others for engaging in several allegedly illegal
schemes.1 Percoco was charged with two counts of conspir-
ing to commit honest-services wire fraud, in violation of
18 U. S. C. §§1343, 1346, and 1349; two counts of soliciting
——————
1 Louis Ciminelli, see No. 21–1170, was also named in this indictment
but not in the counts at issue in this case.
Cite as: 598 U. S. ____ (2023) 3
Opinion of the Court
bribes and gratuities, in violation of §666(a)(1)(B); and
three counts of Hobbs Act extortion, in violation of §1951. 1
App. 96–103. Only the wire fraud conspiracy count relating
to the labor-peace requirement (count 10) is directly at is-
sue before this Court.
That count alleged a conspiracy running “[f]rom at least
in or about 2014, up to and including in or about 2015,” that
is, both during the time when Percoco was formally em-
ployed in the Governor’s office and during the period when
he was working on the Governor’s campaign. See id., at 100
(incorporating ¶4 and ¶¶33–35 of the indictment). Before
trial, Percoco moved for dismissal of that count—and an-
other conspiracy count overlapping with the campaign pe-
riod—on the ground that a private citizen cannot commit or
conspire to commit honest-services wire fraud based on his
own duty of honest services to the public. See id., at 130,
133. The District Court denied that motion, noting that the
indictment alleged that Percoco, while formally working on
the Governor’s campaign, had “ ‘continued to function in a
senior advisory and supervisory role with regard to the Gov-
ernor’s Office’ ” and had “ ‘continued to be involved in the
hiring of staff and the coordination of the Governor’s official
events and priorities . . . among other responsibilities.’ ” Id.,
at 133 (quoting id., at 77, Indictment ¶4).
At trial, the prosecution introduced evidence to support
the indictment’s allegations about Percoco’s activities dur-
ing his break in official service, as well as evidence that he
had expressed his intent and had made plans to resume of-
ficial service after the election. See 13 F. 4th 180, 201–203
(CA2 2021). At the end of the prosecution’s case, Percoco
again moved for judgment of acquittal on count 10, contend-
ing that no evidence showed that he had taken any act in
furtherance of that conspiracy while serving in an official
government capacity. Id., at 187.
The court reserved decision on that motion, ibid., and the
4 PERCOCO v. UNITED STATES
Opinion of the Court
case was submitted to the jury. Over defense counsel’s ob-
jection, the court instructed that Percoco could be found to
have had a duty to provide honest services to the public dur-
ing the time when he was not serving as a public official if
the jury concluded, first, that “he dominated and controlled
any governmental business” and, second, that “people
working in the government actually relied on him because
of a special relationship he had with the government.” 2
App. 511. The jury convicted Percoco on count 10, as well
as two other charged counts relating to additional conduct,
but acquitted him on the other charges. The court then de-
nied Percoco’s motion for judgment of acquittal, and he was
sentenced to 72 months’ imprisonment. 13 F. 4th, at 187–
188.
On appeal, the Second Circuit affirmed. The court ex-
plained that the “fiduciary-duty [jury] instruction” given by
the trial judge “fi[t] comfortably” with, and in fact restated,
the understanding of honest-services fraud that the Second
Circuit had adopted many years earlier in United States v.
Margiotta, 688 F. 2d 108 (1982). See 13 F. 4th, at 194 (not-
ing that Percoco and his co-defendants “seem to agree that
the district court’s fiduciary-duty instruct[ion] falls within
Margiotta”). Based on that precedent, the court also re-
jected Percoco’s claim that there was insufficient evidence
to prove that he had “owed New York State a duty of honest
services while he was managing the Governor’s campaign.”
Id., at 201.
Percoco sought this Court’s review, asking us to decide
whether a private citizen who “has informal political or
other influence over governmental decisionmaking” can be
convicted of honest-services fraud. Pet. for Cert. i. We
granted certiorari. 597 U. S. ___ (2022).2
——————
2 Percoco did not petition for review of the Second Circuit’s affirmance
of the two other convictions relating to additional conduct, including a
Cite as: 598 U. S. ____ (2023) 5
Opinion of the Court
II
A
As noted, the decision below was based squarely on the
Second Circuit’s 1982 decision in Margiotta, and we there-
fore begin by briefly recounting the events that led up to
and followed that decision. The federal wire fraud statute,
§1343 (like the older federal mail fraud statute, §1341), tar-
gets the use of certain instrumentalities to advance “any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, repre-
sentations, or promises.” Before 1987, “all Courts of Ap-
peals had embraced” the view that these statutes proscribe
what came to be known as “honest-services fraud.” Skilling
v. United States, 561 U. S. 358, 401 (2010). In most of these
cases, public employees had accepted a bribe or kickback in
exchange for dishonest conduct that did not necessarily
cause their employers to suffer a financial loss, but this con-
duct was found to constitute mail or wire fraud because it
deprived the relevant government unit (and thus, by exten-
sion, the public) of the right to receive honest services. See
id., at 400–401.
In Margiotta, the Second Circuit faced a case that de-
parted from this pattern. Joseph Margiotta chaired the Re-
publican Party Committees for Nassau County and the
town of Hempstead, New York, and he used the influence
that came with those positions to carry out a kickback
scheme. He was indicted for honest-services mail fraud,
and although he held “no elective office,” the prosecution
argued that he nevertheless breached a duty to render hon-
est services because his party positions “afforded him suffi-
cient power and prestige to exert substantial control over
——————
conviction that also charged conspiracy to commit honest-services fraud.
See Pet. for Cert. 8. He now argues that reversal of his conviction on the
wire fraud conspiracy count before the Court necessitates reversal of
these other counts due to “prejudicial spillover.” Brief for Petitioner 20.
We do not reach this question.
6 PERCOCO v. UNITED STATES
Opinion of the Court
public officials.” 688 F. 2d, at 113.
A divided Second Circuit panel agreed. The majority
found that “there is no precise litmus paper test” for deter-
mining when a private person “owes a fiduciary duty to the
general citizenry” but that “two time-tested measures of fi-
duciary status [were] helpful.” Id., at 122. These were (1)
whether “others rel[ied] upon [the accused] because of [his]
special relationship in the government” and (2) whether he
exercised “de facto control” over “governmental decisions.”
Ibid. Admitting that the case before it was “novel” and that
determining when a private person owes a duty of honest
services was “a most difficult enterprise,” the majority nev-
ertheless concluded that a private person could commit
honest-services fraud if he or she “dominate[d] govern-
ment.” Id., at 121–122. In a strongly worded partial dis-
sent, Judge Winter complained that the majority’s interpre-
tation lacked “the slightest basis in Congressional intent,
statutory language or common canons of statutory interpre-
tation” and that it erroneously treated a variety of “politi-
cally active persons” who have informal but strong influ-
ence over government as subject to the same duties as
officeholders. Id., at 142 (opinion concurring in part and
dissenting in part).
This Court declined to review the Second Circuit’s deci-
sion, 461 U. S. 913 (1983), but that decision’s life as Second
Circuit precedent was short-lived. In McNally v. United
States, 483 U. S. 350 (1987), the Court considered a similar
case, and rather than addressing the application of honest-
services fraud to private persons, the Court rejected the en-
tire concept of honest-services fraud and held that the mail
fraud statute was “limited in scope to the protection of prop-
erty rights.” Id., at 358, 360.
McNally’s holding on honest-services fraud, however,
lasted for less time than Margiotta’s. “Congress responded
swiftly” and enacted 18 U. S. C. §1346, which provides that
Cite as: 598 U. S. ____ (2023) 7
Opinion of the Court
the “ ‘the term “scheme or artifice to defraud,” ’ ” which ap-
pears in both §1341 and §1343, “ ‘includes a scheme or arti-
fice to deprive another of the intangible right of honest ser-
vices.’ ” Skilling, 561 U. S., at 402 (quoting §1346).
Decades later, this Court considered and rejected the
broad argument that §1346 is unconstitutionally vague,
and in doing so, clarified the meaning of the phrase “the
intangible right of honest services.” Id., at 402–405. Noting
§1346’s use of “ ‘[t]he definite article “the” ’ ” in the phrase
“the intangible right of honest services,” we held that §1346
covers the “core” of pre-McNally honest-services case law
and did not apply to “‘all intangible rights of honest services
whatever they might be thought to be.’ ” 561 U. S., at 404–
405 (quoting United States v. Rybicki, 354 F. 3d 124, 137–
138 (CA2 2003) (en banc)). And we observed that “[i]n the
main, the pre-McNally cases involved fraudulent schemes
to deprive another of honest services through bribes or kick-
backs supplied by a third party who had not been deceived.”
561 U. S., at 404. We reasoned that those engaging in such
schemes had sufficient reason to know that their conduct
was proscribed. Id., at 407, 410, 412.
Skilling’s approach informs our decision in this case.
Here, the Second Circuit concluded that “Congress effec-
tively reinstated the Margiotta-theory cases by adopting
statutory language that covered the theory.” 13 F. 4th, at
196. But Skilling was careful to avoid giving §1346 an in-
determinate breadth that would sweep in any conception of
“intangible rights of honest services” recognized by some
courts prior to McNally.
This is illustrated by Skilling’s rejection of the Govern-
ment’s argument that §1346 should be held to reach cases
involving “ ‘undisclosed self-dealing by a public official or
private employee—i.e., the taking of official action by the
employee that furthers his own undisclosed financial inter-
ests while purporting to act in the interests of those to
whom he owes a fiduciary duty.’ ” 561 U. S., at 409–410.
8 PERCOCO v. UNITED STATES
Opinion of the Court
Because the pre-McNally lower court decisions involving
such conduct were “inconsisten[t],” we concluded that this
“amorphous category of cases” did not “constitute core ap-
plications of the honest-services doctrine.” 561 U. S., at
410.
Skilling’s teaching is clear. “[T]he intangible right of
honest services” must be defined with the clarity typical of
criminal statutes and should not be held to reach an ill-
defined category of circumstances simply because of a
smattering of pre-McNally decisions. With this lesson in
mind, we turn to the question whether the theory endorsed
by the lower courts in this case gave §1346 an uncertain
breadth that raises “the due process concerns underlying
the vagueness doctrine.” See 561 U. S., at 408.
B
As noted, Percoco moved before trial for dismissal of the
honest-services conspiracy count at issue on the ground
that he was out of public office during part of the time pe-
riod within the indictment and that a private citizen cannot
be convicted of depriving the public of honest services. See
Defendant’s Memorandum of Law in Support of Motion To
Dismiss the Superseding Indictment in No. 1:16–cr–00776
(SDNY, May 19, 2017), ECF Doc. 187, pp. 25–30. He ad-
vanced a similar theory in his motion for acquittal, empha-
sizing that he was acting under “a short-term agreement
[with Aiello’s firm] within the period in which he was no
longer a state employee.” 1 App. 447.
On this point, Percoco’s arguments sweep too broadly. To
be sure, the pre-McNally record on honest-services fraud is
clearest when the Government seeks to prosecute actual
public officials. Most of the pre-McNally honest-services
prosecutions, including what appears to be the first case to
adopt that theory, involved actual public officials. See Skil-
ling, 561 U. S., at 400–401 (citing Shushan v. United States,
117 F. 2d 110, 115 (CA5 1941)). But we reject the argument
Cite as: 598 U. S. ____ (2023) 9
Opinion of the Court
that a person nominally outside public employment can
never have the necessary fiduciary duty to the public. With-
out becoming a government employee, individuals not for-
mally employed by a government entity may enter into
agreements that make them actual agents of the govern-
ment. An “agent owes a fiduciary obligation to the princi-
pal,” see, e.g., 1 Restatement (Third) of Agency §1.01, Com-
ment e, p. 23 (2005), and therefore an agent of the
government has a fiduciary duty to the government and
thus to the public it serves. In this Court, Percoco has
agreed that individuals who are “delegated authority to act
on behalf ” of a public official and to perform government
duties have a duty to provide honest services. Tr. of Oral
Arg. 12; see also Brief for Petitioner 22, 24, 37; Reply Brief
9. This well-established principle suffices to confirm that
the lower courts correctly rejected Percoco’s per se rule and,
in doing so, did not stretch §1346 past heartland cases. See
Skilling, 561 U. S., at 408.
Rejecting this absolute rule, however, is not enough to
sustain Percoco’s convictions on the wire fraud conspiracy
counts. “[T]he intangible right of honest services” codified
in §1346 plainly does not extend a duty to the public to all
private persons, and whether the correct test was applied
in this case returns us to Margiotta.
C
Percoco challenges the Margiotta theory that underlay
the jury instructions in this case, and we must therefore de-
cide whether those instructions are correct. We hold that
they are not.
1
Directly applying Margiotta, the trial judge told the jury
that Percoco owed a duty of honest services to the public if
(1) he “dominated and controlled any governmental busi-
ness” and (2) “people working in the government actually
10 PERCOCO v. UNITED STATES
Opinion of the Court
relied on him because of a special relationship he had with
the government.” 2 App. 511; see Margiotta, 688 F. 2d, at
122. But Margiotta’s standard is too vague. From time im-
memorial, there have been éminence grises, individuals who
lacked any formal government position but nevertheless ex-
ercised very strong influence over government decisions.
Some of these individuals have been reviled; others have
been respected as wise counselors. The Margiotta test could
be said to apply to many who fell into both of these camps.
It could also be used to charge particularly well-connected
and effective lobbyists. See 688 F. 2d at 142 (opinion of
Winter, J.). Margiotta acknowledged that “the public has
no right to disinterested service” from lobbyists and politi-
cal party officials, but the rule it developed—which was em-
bodied in the jury instructions given in this case—implies
that the public does hold such a right whenever such per-
sons’ clout exceeds some ill-defined threshold. Id., at 122.
Margiotta set a low bar, i.e., the point at which a defend-
ant’s influence goes beyond “minimum participation in the
processes of government.” Ibid. The instructions in this
case demanded more, viz., proof of “dominat[ion],” but what
does that mean in concrete terms? Is it enough if an elected
official almost always heeds the advice of a long-time polit-
ical adviser? Is it enough if an officeholder leans very heav-
ily on recommendations provided by a highly respected pre-
decessor, family member, or old friend? Without further
constraint, Margiotta does not (and thus, the jury instruc-
tions did not) define “the intangible right of honest services”
“ ‘with sufficient definiteness that ordinary people can un-
derstand what conduct is prohibited,’ ” or “ ‘in a manner that
does not encourage arbitrary and discriminatory enforce-
ment.’ ” McDonnell v. United States, 579 U. S. 550, 576
(2016) (quoting Skilling, 561 U. S., at 402–403).
2
The Government does not defend these jury instructions
Cite as: 598 U. S. ____ (2023) 11
Opinion of the Court
as an accurate statement of the law, but it argues that their
imprecision was harmless. Specifically, the Government
argues that a private individual owes a duty of honest ser-
vices to the public “in two discrete circumstances”: (1)
“when the person has been selected to work for the govern-
ment” in the future and (2) “when the person exercises the
functions of a government position with the acquiescence of
relevant government personnel.” Brief for United States
25; cf. 18 U. S. C. §201(b) (federal bribery statute incorpo-
rating “person[s] selected to be a public official”).3
The first theory differs substantially from the jury in-
structions, which did not tell the jury that Percoco could be
found to owe a duty of honest services because he had been
selected for future government service. While the prosecu-
tion offered evidence that Percoco intended to return to gov-
ernment service after the election and had made plans to do
so, the jury could have found that the requirements set out
in the jury instructions were satisfied without relying on
that evidence. Thus, even if we assume for the sake of ar-
gument that there is some merit in the Government’s first
new theory, it is far from clear that the erroneous jury in-
structions would be harmless.
The Government’s second new theory—i.e., that a private
citizen owes a duty to render honest services “when the per-
son exercises the functions of a government position with
the acquiescence of relevant government personnel”—ap-
pears, as defined in its brief, to restate Margiotta’s errone-
ous construction of the law. See Brief for United States 33
(instructions “as a whole and in the context of this case . . .
——————
3 The Government also alluded to a possible third theory at oral argu-
ment, saying that there were “indicia throughout this case that Peti-
tioner was just acting in the role . . . that he had previously formally
held.” Tr. of Oral Arg. 64. To the extent this is a belated argument that
Percoco’s leaving office was to some degree a sham, we express no view
on the viability of this alternative theory of conviction in this case on the
evidence presented.
12 PERCOCO v. UNITED STATES
Opinion of the Court
correctly conveyed” this test). Moreover, the jury was not
told that it was necessary to find that “relevant government
personnel” “acquiesce[d]” in Percoco’s exercise of govern-
ment functions.
In short, the jury instructions are substantially different
from either of the Government’s new theories, and the Sec-
ond Circuit—which treated even the language the Govern-
ment now disclaims in Margiotta as good law—did not af-
firm on either of these theories. We decline to do so here.
* * *
For these reasons, the judgment of the Court of Appeals
is reversed, and the case is remanded for further proceed-
ings consistent with this opinion.
It is so ordered.
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GORSUCH , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1158
_________________
JOSEPH PERCOCO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 11, 2023]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring in the judgment.
The Court holds that the jury instructions in this case
were “too vague.” Ante, at 10. I agree. But to my mind, the
problem runs deeper than that because no set of instruc-
tions could have made things any better. To this day, no
one knows what “honest-services fraud” encompasses. And
the Constitution’s promise of due process does not tolerate
that kind of uncertainty in our laws—especially when crim-
inal sanctions loom. “Vague laws” impermissibly “hand off
the legislature’s responsibility for defining criminal behav-
ior to unelected prosecutors and judges, and they leave peo-
ple with no sure way to know what consequences will attach
to their conduct.” United States v. Davis, 588 U. S. ___, ___
(2019) (slip op., at 1).
Honest-services fraud and this Court’s vagueness juris-
prudence are old friends. The story traces back to the early
1940s when a string of lower courts began stretching the
federal mail-fraud statute’s phrase “scheme or artifice to
defraud.” 18 U. S. C. §1341. Everyone understood that the
phrase covers efforts to swindle money or property. But
some lower courts began suggesting that the phrase also
sweeps in schemes to deprive others of “intangible rights,”
including the right to “honest services.” Skilling v. United
States, 561 U. S. 358, 400 (2010) (citing cases). What did
this new “honest-services fraud” concept encompass? Even
2 PERCOCO v. UNITED STATES
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GORSUCH , J., concurring
, J., concurring in judgment
the lower courts that devised the theory could not agree.
They clashed over everything from who owes a duty of hon-
est services to what sources of law may give rise to that duty
to what sort of actions constitute a breach of it. See id., at
416–420 (Scalia, J., concurring in part and concurring in
judgment).
Eventually, that uncertainty demanded this Court’s at-
tention. In McNally v. United States, 483 U. S. 350 (1987),
the Court held that, while §1341 “clearly protects property
rights,” it does not protect more abstract interests like a
right to “honest . . . government.” Id., at 355, 356. McNally
rested, in no small part, on vagueness concerns. Any other
interpretation, the Court emphasized, would leave the law’s
“outer boundaries ambiguous.” Id., at 360. If Congress
wanted to extend the law to protect more than property
rights, the Court added, “it must speak more clearly than it
has.” Ibid.
Soon Congress did speak. It enacted §1346, which now
defines the phrase “scheme or artifice to defraud” to include
“a scheme or artifice to deprive another of the intangible
right of honest services.” In one sense, the new law did offer
clarity. It dispelled any doubt about whether Congress in-
tended the mail-fraud statute (and later the wire-fraud
statute, §1343) to protect a right to “honest services.” But
in another sense, the law clarified nothing. Congress did
not address McNally’s concern that the phrase “honest-ser-
vices fraud” is unworkably vague. Nothing in the new law
attempted to resolve when the duty of honest services
arises, what sources of law create that duty, or what
amounts to a breach of it. Nor did the new law cross-refer-
ence any portion of the federal criminal code that might
have lent clarity to the concept.
These problems resurfaced in Skilling. There, a majority
of the Court acknowledged that a “vagueness challenge [to
§1346] ha[d] force.” 561 U. S., at 405. But instead of
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, J., concurring in judgment
“throw[ing] out the statute as irremediably vague,” the ma-
jority elected to fill in some of the blanks. Id., at 403–404.
To that end, the majority “look[ed] to the doctrine” of
honest-services fraud as it had developed in the lower
courts “in pre-McNally cases.” Id., at 404. Recognizing the
many internal tensions in that line of cases, the majority
attempted to “pare that body of precedent down to its core.”
Ibid. What exactly falls within that “core”? The majority
could not say. All it could muster was that, “[i]n the main,”
honest-services convictions had involved “fraudulent
schemes to deprive another of honest services through
bribes or kickbacks supplied by a third party who had not
been deceived.” Ibid.
Justice Scalia, Justice Kennedy, and JUSTICE THOMAS
declined to participate in Skilling’s rescue mission. They
saw the Court’s decision as an act of “not interpretation but
invention.” Id., at 422 (opinion of Scalia, J.). Nothing in
the statute, they observed, confined breaches of the duty of
honest services to bribes or kickbacks. Indeed, not a single
lower court had understood the concept to be limited in that
way. Id., at 423. Nor could the dissenters find anything in
the judicial power permitting them to “replac[e] a vague
criminal standard that Congress adopted with a more nar-
row one (included within the vague one).” Id., at 422.
Even on its own terms, the dissenters noted, the major-
ity’s reconstruction of the statute failed “to eliminate [its]
vagueness.” Id., at 421. The majority had not attempted to
define what constitutes a breach of the “ ‘honest services’
obligation,” but sought to identify only conduct that fell
within its “core.” Ibid. Nor had the majority done anything
to “solve the most fundamental indeterminacy” in honest-
services-fraud theory, ibid., for nothing in its decision ex-
plained what kinds of fiduciary relationships are sufficient
to trigger a duty of honest services in the first place. Is the
duty of honest services limited “to public officials” serving
4 PERCOCO v. UNITED STATES
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, J., concurring in judgment
the government? Ibid. Does it also apply “to private indi-
viduals who contract with the public?” Ibid. Or does it ap-
ply to “everyone” who owes some sort of fiduciary responsi-
bility to others, including (say) a corporate officer? Ibid.
What source of law, too, should a court consult to answer
these questions? Must a fiduciary duty arise from positive
state or federal law, or can it arise from general trust law,
“a corpus juris festooned with various duties”? Id., at 417–
418. All these questions, the dissenters observed, had long
divided lower courts and remained unanswered.
Today, the Court returns to these quandaries. The jury
instructions in this case sought to identify at least one in-
stance when a duty of honest services arises—namely,
when a private individual has “ ‘dominated and controlled
any governmental business’ ” and “ ‘people working in the
government actually relied on him because of a special re-
lationship he had with the government.’ ” Ante, at 9–10.
But that formulation, the Court holds, is “too vague” to pass
constitutional muster. Ante, at 10. That is so, the Court
reasons, because it could result in the conviction of anyone
whose “clout exceeds some ill-defined threshold” and thus
sweep in “effective lobbyists” exercising their First Amend-
ment right to petition the government. Ibid. The Court
also pauses briefly to address two alternative tests the gov-
ernment suggests for defining when a duty of honest ser-
vices may attach. But the Court takes no view on the first
and rejects the second. Ante, at 11–12. In the end, we may
now know a little bit more about when a duty of honest ser-
vices does not arise, but we still have no idea when it does.
It’s a situation that leaves prosecutors and lower courts
in a bind. They must continue guessing what kind of fidu-
ciary relationships this Court will find sufficient to give rise
to a duty of honest services. For them, it is back to the
drawing board in their indictments and their jury instruc-
tions. But they are not the main victims here. That plight
belongs to private citizens. In this country, a criminal law
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, J., concurring in judgment
is supposed to provide “ordinary people fair notice of the
conduct it punishes.” Johnson v. United States, 576 U. S.
591, 595 (2015); see also Connally v. General Constr. Co.,
269 U. S. 385, 391 (1926). Yet even 80 years after lower
courts began experimenting with the honest-services-fraud
theory, no one can say what sort of fiduciary relationship is
enough to sustain a federal felony conviction and decades
in federal prison.
To be sure, I cannot fault the Court for the problem. The
difficulty here stems from the statute and the lower court
decisions that inspired it. I have no doubt that if all nine
Justices put our heads together, we could rewrite §1346 to
provide fair notice and minimize the risk of uneven enforce-
ment. I have no doubt, too, that we could find a hook for
any such rule somewhere in the morass of pre-McNally
lower-court case law. Maybe, too, that is the path we are
on, effectively writing this law bit by bit in decisions span-
ning decades with the help of prosecutors and lower courts
who present us with one option after another. But that is
not a path the Constitution tolerates. Under our system of
separated powers, the Legislative Branch must do the hard
work of writing federal criminal laws. Congress cannot give
the Judiciary uncut marble with instructions to chip away
all that does not resemble David. See United States v.
Reese, 92 U. S. 214, 221 (1876) (“It would certainly be dan-
gerous if the legislature could set a net large enough to
catch all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who
should be set at large”); United States v. Wiltberger, 5
Wheat. 76, 95 (1820) (Marshall, C. J.) (“It is the legislature,
not the Court, which is to define a crime, and ordain its
punishment”).
Doubtless, Congress had high and worthy intentions
when it enacted §1346. But it must do more than invoke an
aspirational phrase and leave it to prosecutors and judges
to make things up as they go along. The Legislature must
6 PERCOCO v. UNITED STATES
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, J., concurring in judgment
identify the conduct it wishes to prohibit. And its prohibi-
tion must be knowable in advance—not a lesson to be
learned by individuals only when the prosecutor comes call-
ing or the judge debuts a novel charging instruction. Per-
haps Congress will someday set things right by revising
§1346 to provide the clarity it desperately needs. Until
then, this Court should decline further invitations to invent
rather than interpret this law.