Amicus Curiae Brief — Joseph Percoco, Petitioner v. United States, et al.

No. 21-1158

IN THE

Supreme Court of the United States

————

JOSEPH PERCOCO,

Petitioner,

v.

UNITED STATES,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

————

BRIEF OF THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

————

STEVEN F. MOLO

MOLOLAMKEN LLP

430 Park Avenue

New York, NY 10022

(212) 607-8160

KENNETH E. NOTTER III

MOLOLAMKEN LLP

300 N. LaSalle Street

Chicago, IL 60654

(312) 450-6700

JOSHUA L. DRATEL

Counsel of Record

CO-CHAIR, NACDL AMICUS

COMMITTEE

DRATEL & LEWIS

29 Broadway, Suite 1412

New York, NY 10006

(212) 732-0707

jdratel@joshuadratel.com

Counsel for The National Association of

Criminal Defense Lawyers

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Interest of Amicus Curiae .........................................

Summary of Argument ...............................................

Argument ......................................................................

I.

The “Reliance-and-Control” Theory

Erodes Essential Limits on Honest

Services Fraud.................................................

II. Equitable Principles Are Fundamentally

Incompatible with Criminal Law ..................

Conclusion .....................................................................

(i)

Page

1

2

2

2

5

6

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Bouie v. City of Columbia,

378 U.S. 347 (1964) .............................................

4

Dixson v. United States,

465 U.S. 482 (1984) .............................................

3

Duncan v. Louisiana,

391 U.S. 145 (1968) .............................................

5

Grayned v. City of Rockford,

408 U.S. 104 (1972) .............................................

5

Hughey v. United States,

495 U.S. 411 (1979) .............................................

4

Krulewitch v. United States,

336 U.S. 440 (1949) .............................................

5

Liparota v. United States,

471 U.S. 419 (1985) .............................................

5

McDonnell v. United States,

579 U.S. 550 (2016) .............................................

2

McNally v. United States,

483 U.S. 350 (1987) .............................................

3

Skilling v. United States,

561 U.S. 358 (2010) .......................................... 2, 3, 4

United States v. Hayes,

555 U.S. 415 (2009) .............................................

4

United States v. Margiotta,

688 F.2d 108 (2d Cir. 1982) ............................ 3, 4, 5

United States v. Morgan,

346 U.S. 502 (1954) .............................................

6

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ............................. 4, 5

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Wooden v. United States,

142 S. Ct. 1063 (2022)......................................... 4, 6

STATUTES

18 U.S.C. § 1346 ...............................................

passim

OTHER AUTHORITIES

J. Baker, An Introduction to English

Legal History (5th ed. 2019).............................

1 W. Blackstone, Commentaries on the

Laws of England (1765) ....................................

J. Coffee, Jr., Does “Unlawful” Mean

“Criminal”?: Reflections on the

Disappearing Tort/Crime

Distinction in American Law,

71 B.U. L. Rev. 193 (1991) ................................

The Federalist No. 83

(C. Rossiter ed. 1961) ........................................

5

5

6

5

IN THE

Supreme Court of the United States

————

NO. 21-1158

JOSEPH PERCOCO,

Petitioner,

v.

UNITED STATES,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

————

BRIEF OF THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

————

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense Lawyers

is a nonprofit bar association that works on behalf of criminal defense attorneys to ensure justice and due process

for those accused of crimes.

NACDL was founded in 1958. It has a nationwide

membership of thousands of members, including private

1

All parties received timely notice of this brief and consented to its

filing. No counsel for a party authored this brief in whole or in part;

no such counsel or party made a monetary contribution to fund the

preparation or submission of the brief; and no person other than amicus curiae, its members, or its counsel made such a contribution.

2

criminal defense lawyers, public defenders, military

defense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for public

defense and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient,

and just administration of criminal justice. Each year,

NACDL files amicus briefs in this Court and others in

cases that present issues of broad importance to criminal

defendants, criminal defense lawyers, and the criminal

justice system. NACDL has a particular interest in reducing overcriminalization. It regularly opposes overbroad interpretations of criminal laws and has filed multiple amicus briefs regarding the proper interpretation of

the honest services fraud statute.

SUMMARY OF ARGUMENT

The Second Circuit’s reliance-and-control theory of

honest services fraud epitomizes the dangers of importing

equitable doctrines into the criminal law. That theory

goes far beyond the core of honest services fraud. It is –

by design – a fact-dependent, elastic theory incapable of

precise definition. The Court should reject it and reaffirm

that malleable equitable principles have no place in honest

services fraud or the criminal law generally.

ARGUMENT

I. THE “RELIANCE-AND-CONTROL” THEORY ERODES

ESSENTIAL LIMITS ON HONEST SERVICES FRAUD

This Court has limited honest services fraud “to its

core.” Skilling v. United States, 561 U.S. 358, 404 (2010).

That core encompasses only “paradigmatic cases of bribes

and kickbacks” – fraudulent schemes to deprive another

of the right to “honest services,” id. at 411, by accepting a

private benefit in exchange for an “official act,” McDonnell v. United States, 579 U.S. 550, 574-575 (2016).

3

Mr. Percoco was neither a government employee nor an

agent with “official [governmental] responsibilities.” Dixson v. United States, 465 U.S. 482, 496 (1984). He was

accordingly in no position to perform the kind of “official

act” needed to commit “paradigmatic” bribery. Yet the

Second Circuit nevertheless affirmed his conviction, holding that even a private citizen owes the public a “fiduciary

duty” to provide honest services if he informally “dominated and controlled any governmental business” and anyone “in the government actually relied on him.” Pet. App.

24a.

By dispensing with the element of an official act, the

Second Circuit’s approach threatens to transform even

such core political activity as using one’s informal

influence to advance private interests into a federal crime.

That expands honest services fraud far beyond the bounds

this Court has set.

The Court initially rejected the honest services theory

precisely because “its outer boundaries [were] ambiguous.” McNally v. United States, 483 U.S. 350, 360 (1987).

The Court later narrowed § 1346 to its “bribe-and-kickback core” because a broader reading would deprive defendants of fair notice and invite “arbitrary and discriminatory prosecutions.” Skilling, 561 U.S. at 409, 412. That

narrow version of honest services fraud created “ ‘a uniform national standard’ ” and defined “honest services

with clarity.” Id. at 411. It ensured that “[t]he existence

of a fiduciary relationship” would be “beyond dispute”

because core “bribe and kickback cases” involve indisputable fiduciary relationships like “public official-public” or

“employee-employer.” Id. at 407 n.41.

The reliance-and-control theory erases the bright line

this Court drew in Skilling. As an equitable theory involving “most difficult” line drawing, its outer boundaries are

4

necessarily ambiguous. United States v. Margiotta, 688

F.2d 108, 122 (2d Cir. 1982). The de facto “reliance” and

“control” often can be assessed only after the fact. Thus,

there is no notice – let alone the fair notice due process

demands. By drawing on equity and common law, the theory guarantees there can be no uniform national standard

for honest services fraud.

The Second Circuit divined its reliance-and-control theory from § 1346’s “capacious language,” Pet. App. 27a; its

legislative history, Pet. App. 29a (relying on legislative

history); and the “federal public policy” against fraud,

Margiotta, 688 F.2d at 124. That ignores that criminal

laws must “be construed strictly,” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94 (1820); ambiguities must

be resolved “in favor of the defendant,” Hughey v. United

States, 495 U.S. 411, 422 (1979); and courts cannot expand

criminal laws based on “general declarations of policy in

the statute and legislative history,” ibid.

The reliance-and-control theory forces individuals “at

peril of life, liberty or property to speculate” as to the lawfulness of their conduct. Bouie v. City of Columbia, 378

U.S. 347, 351 (1964). It condemns defendants “for failing

to * * * comb through obscure legislative history” and

violating an amorphous public policy expressed in vague

language. United States v. Hayes, 555 U.S. 415, 437 (2009)

(Roberts, C.J., dissenting); see Wooden v. United States,

142 S. Ct. 1063, 1085-1085 (Gorsuch, J., concurring in the

judgment) (“legislative history and purpose” no basis to

“expand” criminal liability). That defies this Court’s honest services fraud precedent and basic principles of criminal law.

5

II. EQUITABLE

PRINCIPLES ARE FUNDAMENTALLY

INCOMPATIBLE WITH CRIMINAL LAW

The Second Circuit’s reliance on equitable principles to

expand the scope of § 1346 threatens consequences far

beyond the scope of honest services fraud.

This Court has said repeatedly that criminal laws “are

solely creatures of statute.” Liparota v. United States,

471 U.S. 419, 424 (1985). There are “no judge-made offenses.” Krulewitch v. United States, 336 U.S. 440, 456-457

(1949) (Jackson, J., concurring). Courts may not “punish

a crime not enumerated in the statute” merely “because it

is of equal atrocity, or of kindred character, with those

which are enumerated.” Wiltberger, 18 U.S. (5 Wheat.) at

96. Criminal statutes “must provide explicit standards.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Yet the whole purpose of equity is to supply “relief in

extraordinary cases, which are exceptions to general

rules.” The Federalist No. 83, at 505 (Hamilton) (C. Rossiter ed. 1961). Equity depends “upon the particular

circumstances of each individual case.” 1 W. Blackstone,

Commentaries on the Laws of England *61 (1765). Indeed, to reduce equitable principles to “established rules

and fixed precepts” would “destroy[ ] it’s [sic] very

essence.” Id. at *61-62.

To the extent American criminal law has ever incorporated equitable principles, it has been to protect defendants. Equity works “to soften and mollify the extremity

of the law.” J. Baker, An Introduction to English Legal

History 115 (5th ed. 2019) (emphasis added). That softening impulse “found expression in the criminal law in th[e]

insistence upon community participation in the determination of guilt or innocence.” Duncan v. Louisiana, 391 U.S.

145, 156 (1968). The writ of coram nobis has a similar equitable flair, allowing criminal defendants to correct legal or

6

factual errors after trial where necessary “to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954);

see also Wooden, 142 S. Ct. at 1085 (Gorsuch, J., concurring in the judgment) (rule of lenity works “to limit, never

expand, punishment”).

Weaponizing equitable principles to expand criminal

liability – as the reliance-and-control theory does – is a

dangerous innovation. Civil law standards, particularly

those sounding in equity, are often “aspirational” and

“inherently open-ended.” J. Coffee, Jr., Does “Unlawful”

Mean “Criminal”?: Reflections on the Disappearing

Tort/Crime Distinction in American Law, 71 B.U. L.

Rev. 193, 201 (1991). Imposing such shifting standards

onto the criminal law threatens the “distinctly American

version of the rule of law” grounded in fair notice and

lenity. Wooden, 142 S. Ct. at 1083 (Gorsuch, J., concurring

in the judgment). It inverts the rule that, “where uncertainty exists, the law gives way to liberty” and renders

“liberties dependent on ‘the private opinions of judges.’ ”

Id. at 1082, 1083.

CONCLUSION

The judgment of the United States Court of Appeals for

the Second Circuit should be reversed.

Respectfully submitted.

STEVEN F. MOLO

MOLOLAMKEN LLP

430 Park Avenue

New York, NY 10022

(212) 607-8160

KENNETH E. NOTTER III

MOLOLAMKEN LLP

300 N. LaSalle Street

Chicago, IL 60654

(312) 450-6700

JOSHUA L. DRATEL

Counsel of Record

CO-CHAIR, NACDL AMICUS

COMMITTEE

DRATEL & LEWIS

29 Broadway, Suite 1412

New York, NY 10006

(212) 732-0707

jdratel@joshuadratel.com

Counsel for The National Association of

Criminal Defense Lawyers

SEPTEMBER 2022