U.S. Supreme Court leans toward limiting public corruption prosecutions

[November 29, 2022]  By Nate Raymond and Andrew Chung

WASHINGTON (Reuters) -U.S. Supreme Court justices on Monday appeared poised to make it tougher to prosecute political corruption cases as they signaled sympathy toward appeals by an ex-aide to Democratic former New York Governor Andrew Cuomo and a businessman of bribery and fraud convictions.

The justices heard arguments in appeals by Cuomo's former executive deputy secretary Joseph Percoco and onetime construction company executive Louis Ciminelli, who were charged in a corruption crackdown by federal prosecutors in Manhattan centered on the halls of the state capital of Albany.

The Supreme Court in recent years has reined in the types of conduct that can warrant prosecution as corrupt. Conservative and liberal justices asked questions on Monday indicating they still see the Justice Department's view of the class of people who can be targeted under U.S. corruption laws as too broad by implicating private lobbyists in addition to public officials.

"There's a concern about interpreting this statute to sweep in lobbying," conservative Justice Samuel Alito said.

Liberal Justice Elena Kagan expressed doubt that the government, under its view of the law, could avoid prosecuting someone who is "just a really, really good lobbyist."

The Supreme Court's eventual rulings, expected by the end of June, also will affect three co-defendants charged in corruption and fraud cases during Cuomo's tenure as governor involving state contracts worth hundreds of millions of dollars.
 

The charges against Percoco and Ciminelli were brought in 2016 by former Manhattan U.S. Attorney Preet Bharara, who also brought corruption charges against top state lawmakers including former Assembly Speaker Sheldon Silver. Cuomo was not charged but resigned in 2021 in an unrelated sexual harassment scandal.

Percoco was convicted in 2018 on bribery-related charges for seeking $315,000 in bribes in exchange for helping two corporate clients of Albany lobbyist Todd Howe seeking state benefits and business. Percoco was sentenced to six years in prison.

Howe pleaded guilty and cooperated with investigators. Real estate developer Steven Aiello, who prosecutors said orchestrated bribes to Percoco, was also convicted.

At the time of the actions at issue, Percoco was no longer serving in government as Cuomo's aide but instead managing the governor's 2014 re-election campaign, a fact his lawyers said meant he could not be convicted of bribery.

Yaakov Roth, Percoco's lawyer, argued that his status as a private citizen meant that his acceptance of money to convince the government to do something indicated he was not a criminal but a lobbyist who was free to be paid for his influence.

The U.S. Supreme Court building is seen in Washington, U.S., October 2, 2022. REUTERS/Elizabeth Frantz

The New York-based 2nd U.S. Circuit Court of Appeals in 2021 upheld his conviction, finding Percoco had a guaranteed job in Cuomo's administration post-election and in the interim exercised enough influence over government decision-making to owe a duty to the public.

While the justices expressed concerns about the prosecution, they suggested that the limited scope proposed by Percoco's lawyer of who could be targeted might be too narrow, with Kagan saying it would allow an official to quit the government, take a bribe, then immediately rejoin the government.

"There has to be something wrong with that," Kagan said. "But your theory would suggest that you can't prosecute the public official under this statute."

Ciminelli's case focused on Howe's role as a consultant hired to help administer Cuomo's $1 billion revitalization initiative for the Buffalo, New York area. Prosecutors said executives at two companies including Ciminelli conspired with Howe and Alain Kaloyeros, who oversaw the project's grant application process, to rig bids to ensure contracts went to their firms.

Ciminelli was convicted alongside Kaloyeros, the former president of State University of New York's Polytechnic Institute, and developers Joseph Gerardi and Aiello. They also have asked the Supreme Court to reverse their convictions.

Ciminelli was sentenced to two years and four months in prison. Michael Dreeben, Ciminelli's lawyer, argued that prosecutors relied on an invalid legal theory of wire fraud that involved depriving a victim not of tangible property but of economically valuable information - a view that even Justice Department lawyer Eric Feigin called "awkward."

Conservative Justice Neil Gorsuch said there was broad agreement that the legal theory was wrong. But Feigin said Ciminelli's conviction could still be sustained under a "more straight-forward and traditional" interpretation of wire fraud covering property frauds.

The Supreme Court in recent years has limited prosecutors in political corruption cases. In 2020, it overturned the convictions of two aides to Republican former New Jersey Governor Chris Christie in the "Bridgegate" political scandal. In 2016, it threw out Republican former Virginia Governor Robert McDonnell's bribery conviction.

(Reporting by Nate Raymond in Boston and Andrew Chung in Washington)

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