Supreme Court likely to toss New York corruption convictions

[NewYorkExpress]

https://www.politico.com/news/2022/11/28/supreme-court-new-york-corruption-00071011

The often-fractious Supreme Court displayed unusual consensus Monday as it signaled an appetite to overturn fraud convictions in two New York corruption cases involving developers with ties to former Gov. Andrew Cuomo’s administration.

Conservative and liberal justices strongly suggested both cases brought by anti-corruption crusading former U.S. Attorney Preet Bharara relied on faulty legal premises. Much of the debate during oral arguments Monday centered on how broadly the court would word opinions rejecting the theories prosecutors used to win guilty verdicts from juries.

It looks, like judging by what was going on in oral arguments that we'll have a unanimous decision in both cases (maybe a lone dissenter in Ciminelli's). These might be Kentanji Brown Jackson's first two majority opinions (if she gets both of them).

[SWE]

Good. If Congress wants to criminalize the defendant's conduct in this case, they should write a law that does that. It's not the job of the prosecutor to invent new crimes that aren't found anywhere in the text of criminal statutes just because the defendants are bad people and it feels like what they did should be illegal.

[they don't love you like i love you]

So what did these guys do and why was it technically not illegal?

[Donerail]

So what did these guys do and why was it technically not illegal?

Cuomo's campaign manager took money from a developer and then lobbied a state agency to act in the developer's favor; the question is whether this is honest services fraud, or if he was basically just acting as a lobbyist b/c he was a private citizen at the time.

[SWE]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

[Benjamin Frank]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

The same lobbyists who do these things also make sure that legislatures don't write laws that criminalize this sort of unethical behaviour.  This is a clear case of the fox guarding the hen house.

I don't know if anything can be done about this short of going back to criminal common law,  but it's things like this that accurately lead many people to conclude that there are two standards of law, with support from all the elites including Supreme Court Justices and that ultimately bring the law into disrepute.

[SWE]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

The same lobbyists who do these things also make sure that legislatures don't write laws that criminalize this sort of unethical behaviour.  This is a clear case of the fox guarding the hen house.

I don't know if anything can be done about this short of going back to criminal common law,  but it's things like this that accurately lead many people to conclude that there are two standards of law, with support from all the elites including Supreme Court Justices and that ultimately bring the law into disrepute.

I'd rather lobbyists get away with corruption than grant prosecutors the power to ignore due process and lock up people for acts that aren't illegal based on vibes

[Benjamin Frank]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

The same lobbyists who do these things also make sure that legislatures don't write laws that criminalize this sort of unethical behaviour.  This is a clear case of the fox guarding the hen house.

I don't know if anything can be done about this short of going back to criminal common law,  but it's things like this that accurately lead many people to conclude that there are two standards of law, with support from all the elites including Supreme Court Justices and that ultimately bring the law into disrepute.

I'd rather lobbyists get away with corruption than grant prosecutors the power to ignore due process and lock up people for acts that aren't illegal based on vibes

Would you similarly prefer that 'street criminals' get away with street crime rather than be killed by police or do your sympathies only extend to wealthy/powerful people?

[SWE]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

The same lobbyists who do these things also make sure that legislatures don't write laws that criminalize this sort of unethical behaviour.  This is a clear case of the fox guarding the hen house.

I don't know if anything can be done about this short of going back to criminal common law,  but it's things like this that accurately lead many people to conclude that there are two standards of law, with support from all the elites including Supreme Court Justices and that ultimately bring the law into disrepute.

I'd rather lobbyists get away with corruption than grant prosecutors the power to ignore due process and lock up people for acts that aren't illegal based on vibes

Would you similarly prefer that 'street criminals' get away with street crime rather than be killed by police or do your sympathies only extend to wealthy/powerful people?

Yes, not a hard question. Very hard to construct a scenario in which I would side with cops over criminals

[Benjamin Frank]

So what did these guys do and why was it technically not illegal?

Percoco got paid off by real estate developers to influence Cuomo - which is obviously shady and bad, but he was a private citizen at the time and is being charged under a statute which only applies to public officials. The government's theory is that he was a functional government employee , which they proposed a three part test for determining if you're a functional government employee - 1) the other government employees treated them as a functional government employee 2) that they had power to command government employees to perform specific acts and 3)  there are some additional indicia and trappings of a government role. The problem with this text is that there's no statutory basis for it, the prosecutors essentially pulled it out of thin air and someone would have no way of figuring out their conduct was criminal based on how the law is written. This wouldn't be a horrible standard on its own imo, but it's pretty important for due process that a legislature actually write a law to criminalize an act before we start locking people up for it.

Less familiar with the other case but as far as I'm aware it's pretty similar, but the charge is wire-services fraud instead of bribery

The same lobbyists who do these things also make sure that legislatures don't write laws that criminalize this sort of unethical behaviour.  This is a clear case of the fox guarding the hen house.

I don't know if anything can be done about this short of going back to criminal common law,  but it's things like this that accurately lead many people to conclude that there are two standards of law, with support from all the elites including Supreme Court Justices and that ultimately bring the law into disrepute.

I'd rather lobbyists get away with corruption than grant prosecutors the power to ignore due process and lock up people for acts that aren't illegal based on vibes

Would you similarly prefer that 'street criminals' get away with street crime rather than be killed by police or do your sympathies only extend to wealthy/powerful people?

Yes, not a hard question. Very hard to construct a scenario in which I would side with cops over criminals

Ah, well carry on then!

[World politics is up Schmitt creek]

Yeah, I'm not sure whether or not I agree with SWE in this particular case--I'd have to look more closely into what these particular Cuomoworld people did--but he's definitely a poster I trust to apply Blackstone's ratio consistently.

[Ferguson97]

Yeah, I'm not sure whether or not I agree with SWE in this particular case--I'd have to look more closely into what these particular Cuomoworld people did--but he's definitely a poster I trust to apply Blackstone's ratio consistently.

SWE seems like one of the last people to go out of his way to defend corruption among the elites, so I'm inclined to trust him here.

[NewYorkExpress]

The Supreme Court has overturned both convictions. Thomas and Alito get the opinions.

The Supreme Court on Thursday threw out two fraud convictions during Gov. Andrew M. Cuomo’s administration in New York, dealing prosecutors the latest in a series of setbacks in their efforts to pursue federal charges of public corruption in state government.

...
The question in the first, Percoco v. United States, No. 21-1158, was whether Mr. Percoco could be prosecuted under a federal law that makes it a crime to deprive the government of “honest services” for conduct that took place after he resigned his official position to run the governor’s 2014 re-election campaign.

....

Justice Samuel A. Alito Jr., writing for seven members of the court, said that the jury instructions in the case had been flawed and that an appeals court should reconsider the matter.


The jury was told that it could convict Mr. Percoco of honest-services fraud while a private citizen if “he dominated and controlled any governmental business” or if “people working in the government actually relied on him because of a special relationship he had with the government.”

The instructions were too broad and too vague, Justice Alito wrote, as they could apply to people no longer in the government who were influential merely because of their lengthy careers.

“Some of these individuals have been reviled,” he wrote. “Others have been respected as wise counselors.”

The jury instructions, he wrote, “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.”

Still, Justice Alito wrote that some of Mr. Percoco’s arguments “sweep too broadly.”

“We reject the argument that a person nominally outside public employment can never have the necessary fiduciary duty to the public,” Justice Alito wrote. “Without becoming a government employee, individuals not formally employed by a government entity may enter into agreements that make them actual agents of the government.”

Mr. Percoco had urged the justices to reverse two other convictions in a separate scheme, saying there had been “prejudicial spillover” from the honest-services charge. Justice Alito said the Supreme Court would not address the argument, letting the other convictions stand.

In a concurring opinion, Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, said the court should have gone further and defined precisely when a duty of providing “honest services” arose.

....


The second case, Ciminelli v. United States, No. 21-1170, concerned what prosecutors said was a conspiracy to commit wire fraud by tailoring requests for proposals for work on the Buffalo development to include qualifications that would ensure the contracts would go to Mr. Ciminelli’s firm.

....

Justice Thomas, writing for the court, said flatly that “the right-to-control theory is invalid,” returning the case to the appeals court for further proceedings.