Petition for Writ of Certiorari — Eric Goldstein, Petitioner v. United States

No. 26–_____

________________________________________________________________________

________________________________________________________________________

In the

Supreme Court of the United States

____________________________________

Eric Goldstein,

Petitioner,

v.

United States of America,

Respondent.

______________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

________________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________________________________________________

Ashok Chandran

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

ashok_chandran@fd.org

(212) 417–8743

Counsel for Petitioner

QUESTIONS PRESENTED

Petitioner was convicted of honest services wire fraud in violation of 18

U.S.C. §§ 1343 and 1346 and Hobbs Act extortion in violation of 18 U.S.C. § 1951 for

using his position as a public official to benefit a company that he owned a stake in,

thereby enriching himself. The questions presented are:

1.

Is the honest services wire fraud statute void for vagueness?

2.

Should this Court revisit its decision in Evans v. United States, 504

U.S. 255 (1992) and hold that simply accepting a bribe does not

constitute extortion?

i

PARTIES TO THE PROCEEDING

The parties and their stock tickers are as follows:

Petitioner:

Eric Goldstein

Stock Ticker: N/A

Respondent:

United States of America

Stock Ticker: N/A

Codefendant:

Blaine Iler

Stock Ticker: N/A

Codefendant:

Michael Turley

Stock Ticker: N/A

Codefendant:

Brian Twomey

Stock Ticker: N/A

Codefendants Twomey, Iler, and Turley have no interest in the resolution of

this petition.

RELATED PROCEEDINGS

There are no related proceedings.

ii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties to the Proceeding .............................................................................................. ii

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... iv

Opinions and Orders Below........................................................................................... 1

Jurisdiction .................................................................................................................... 1

Relevant Constitutional And Statutory Provisions...................................................... 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 5

Reasons for Granting the Writ ...................................................................................... 9

I.

The Honest Services Wire Fraud Statute Is Unconstitutionally

Vague. ....................................................................................................... 9

II.

Acceptance Of A Bribe Is Not Hobbs Act Extortion. ............................. 16

III.

This Court’s Intervention Is Needed To Protect The Unique

Federalism Concerns Implicated By Federal Bribery Law. ................. 18

Conclusion .................................................................................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Black v. United States, 561 U.S. 465 (2010)........................................................ 4, 12

Cleveland v. United States, 531 U.S. 12 (2000)......................................................... 2

Evans v. United States, 504 U.S. 255 (1992)............................................................. 5

Johnson v. United States, 576 U.S. 591 (2015) ............................................. 9, 10, 14

Kelly v. United States, 590 U.S. 391 (2020)......................................................... 2, 18

Kolender v. Lawson, 461 U.S. 352 (1983) .................................................................. 9

McNally v. United States, 483 U.S. 350 (1987) ....................................................... 11

Ocasio v. United States, 578 U.S. 282 (2016) ...................................................... 5, 17

Percoco v. United States, 598 U.S. 319 (2023) ................................................. passim

Sessions v. Dimaya, 584 U.S. 148 (2018) .................................................................. 9

Silver v. United States, 141 S. Ct. 656 (2021) ..................................................... 5, 17

Skilling v. United States, 561 U.S. 358 (2010) ................................................ passim

United States v. Davis, 588 U.S. 445 (2019) ....................................................... 9, 12

United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921) .................................... 14

Statutes

18 U.S.C. § 1343 ................................................................................................... 1, 10

18 U.S.C. § 1341 ....................................................................................................... 10

Other Authorities

Kate Stith, No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess, and the

Vagueness Doctrine, 127 Yale L.J. Forum 233 (2017) ............................................ 17

iv

OPINIONS AND ORDERS BELOW

The order of the United States Court of Appeals for the Second Circuit

affirming the judgment of conviction appears at Pet. App. 01a–13a and is reported

at 2026 WL 603803. The order from the Court of Appeals denying panel rehearing

and rehearing en banc appears at Pet. App. 14a.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231, and entered

judgment on September 19, 2024. The Court of Appeals had jurisdiction under 28

U.S.C. § 1291, affirmed on March 4, 2026, and denied a petition for rehearing on

May 13, 2026. This Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment provides, in relevant part:

No person shall . . . be deprived of life, liberty, or property, without due

process of law.

18 U.S.C. § 1343 (Fraud by wire, radio, or television) provides, in relevant

part:

Whoever, having devised or intending to devise any scheme or artifice to

defraud, or for obtaining money or property by means of false or fraudulent

pretenses, representations, or promises, transmits or causes to be

transmitted by means of wire, radio, or television communication in

interstate or foreign commerce, any writings, signs, signals, pictures, or

sounds for the purpose of executing such scheme or artifice, shall be fined

under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1346 (Definition of “scheme or artifice to defraud”) provides:

For the purposes of this chapter, the term “scheme or artifice to defraud”

includes a scheme or artifice to deprive another of the intangible right of

honest services.

1

18 U.S.C. § 1951 (Interference with commerce by threats or violence)

provides, in relevant part:

Whoever in any way or degree obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce,

by robbery or extortion or attempts or conspires so to do, or commits or

threatens physical violence to any person or property in furtherance of a plan

or purpose to do anything in violation of this section shall be fined under this

title or imprisoned not more than twenty years, or both.

[. . .]

The term “extortion” means the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, violence, or

fear, or under color of official right.

INTRODUCTION

This Court has time and again cautioned against―and restrained―“‘sweeping

expansion[s] of federal criminal jurisdiction.’” Kelly v. United States, 590 U.S. 391,

404 (2020) (quoting Cleveland v. United States, 531 U.S. 12, 24 (2000)). Nowhere

has that effort been more concerted than in the context of public corruption laws,

where this Court has repeatedly intervened because of “significant federalism

concerns.” McDonnell v. United States, 579 U.S. 550, 576 (2016). This case calls out

for similar relief.

Petitioner Eric Goldstein was convicted of honest services wire fraud and

Hobbs Act extortion on the theory that he used his position as a public official to

solicit a bribe. A core part of the government’s evidence that a bribe had occurred

was Petitioner’s undisclosed self-dealing.

Petitioner worked as a senior official within the New York City Department

of Education, where his portfolio included overseeing the provision of meals to

2

students in New York City public schools. He managed multiple initiatives to

improve the health of New York students, including by replacing all of the chicken

in the system with antibiotic-free chicken provided by Somma Food Group. While he

worked with Somma to provide antibiotic-free chicken to his schools, Petitioner also

began a side business with Somma to import kosher, grass-fed beef from various

other countries. That side business was ultimately unsuccessful, and Petitioner and

Somma began negotiating a separation agreement. Petitioner’s work with RMSCO

was a conflict of interest: while he oversaw Somma products in his role with the

Department of Education, he also had a personal side venture with them that he

failed to disclose to local ethics authorities.

Around the same time, Somma’s chicken tenders were temporarily taken out

of schools because of bone fragments found in the items. They were added back to

the menu the day after Somma formally executed a previously-negotiated

separation agreement allowing Somma to withdraw from RMSCO. The government

alleged that the execution of the separation agreement was a bribe that Petitioner

solicited in exchange for returning Somma products to school menus. For that

conduct, Petitioner was convicted of federal program bribery in violation of 18

U.S.C. § 666, honest services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346,

and Hobbs Act extortion in violation of 18 U.S.C. § 1951 (as well as related

conspiracy offenses).

Petitioner’s conviction implicates two issues warranting this Court’s review.

3

First, Petitioner’s honest services fraud conviction cannot stand because §

1346 is void for vagueness, both on its face and as applied, in violation of the Fifth

Amendment’s Due Process Clause. This Court has long attempted, unsuccessfully,

to define the scope of the statute. In Skilling v. United States, 561 U.S. 358 (2010),

this Court held the statute “covers only bribery and kickback schemes,” id. at 368,

and not “undisclosed self-dealing by a public official,” id. at 409; accord Black v.

United States, 561 U.S. 465 (2010) (decided concurrently with Skilling and vacating

honest services wire fraud conviction premised on undisclosed self-dealing). Justice

Scalia expressed his doubts that such a distinction is possible in practice, or that

such a construction could save the statute. Skilling, 561 U.S. at 421–422 (Scalia, J.

concurring). And his doubts have proven well-founded. As Justice Gorsuch, joined

by Justice Thomas, recently observed, despite this Court’s many efforts to cabin and

clarify § 1346’s scope, “[t]o 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 criminal sanctions loom.” Percoco

v. United States, 598 U.S. 319, 333 (2023) (Gorsuch, J., joined by Thomas, J.,

concurring). Petitioner’s case shows the difficulty. Petitioner was engaged in a

separate joint venture with a vendor whose products he was ultimately tasked with

approving or denying for use in schools. It is difficult, if not impossible, to identify

when his conduct crossed the line from undisclosed self-dealing to a bribery and

kickback scheme. This Court should grant the petition and hold that the honest

services wire fraud is unconstitutionally vague.

4

Second, Petitioner was convicted of Hobbs Act extortion solely on a theory

that he accepted a bribe. This Court blessed such an interpretation of the statute in

Evans v. United States, 504 U.S. 255 (1992). But Evans spawned criticism the day it

was decided, and the chorus has only grown louder in the intervening decades. As

Justice Thomas noted in his dissent, extortion and bribery were distinct—and

mutually exclusive—crimes at common law. That is because “[w]here extortion is at

issue, the public official is the sole wrongdoing; because he acts ‘under color of

office,’ the law regards the payor as an innocent victim and not an accomplice.” Id.

at 279 (Thomas, J., dissenting). In the case of bribery, by contrast, “the payor knows

the recipient official is not entitled to the payment; he, as well as the official, may

be punished for the offense.” Id. In the intervening years, other members of the

Court have come to share those concerns. See, e.g., Silver v. United States, 141 S.

Ct. 656, 656–57 (2021) (Gorsuch, J., dissenting from denial of certiorari); Ocasio v.

United States, 578 U.S. 282, 300 (2016) (Breyer, J., concurring). Petitioner’s case

presents the ideal vehicle to revisit Evans: the government alleged only that

Petitioner sought and received a bribe from Somma, not that he was entitled to any

money or property by virtue of his office. This Court should grant the petition and,

at last, overturn Evans to restore the common law understanding of bribery and

extortion as separate crimes.

STATEMENT OF THE CASE

Petitioner’s work with the New York City Department of Education included

oversight of the Office of Food and Nutrition Services (also known as SchoolFood).

5

After many years in that role, Petitioner began exploring the possibility of starting

a company to import kosher or grass-fed beef from various parts of the world.

Petitioner formalized a venture with four others and started Range Meats Supply

Company (RMSCO). RMSCO was structured as a partnership: Petitioner and

another individual each owned a 20% interest, with the remaining 60% held by a

separate company, Somma Food Group, that was owned by the other three

partners.

Around the same time, Somma began meeting with SchoolFood officials in

response to a request for proposals to discuss providing antibiotic-free chicken to

New York City schools. Somma put together a proposal that met SchoolFood’s

specifications, and its antibiotic-free chicken tenders were approved for use in

schools beginning in September 2016. Petitioner was not involved in the decision to

approve Somma’s products or schedule them for use in schools.

While Somma was pursuing its contract with SchoolFood, RMSCO was

making efforts to launch. RMSCO did not, however, become a viable business and

never generated revenue. Petitioner and Somma began discussing a separation

agreement, under which Somma would exit the partnership, in the summer of 2016.

They finalized the terms of the agreement by the end of September. Petitioner did

not disclose his work with RMSCO to anyone within SchoolFood, even as

SchoolFood began sourcing chicken tenders from Somma.

Shortly after Somma’s antibiotic-free chicken tenders were placed in schools,

SchoolFood received complaints of bone fragments in the tenders. SchoolFood placed

6

a hold on the product and directed Somma to submit a remedial plan. Somma did

so, and the hold was lifted after 20 days. Another bone fragment was then found in

the chicken tenders, prompting a second hold. Somma again submitted a remedial

plan, and the hold was lifted after 21 days. The government accused Petitioner of

delaying the lift on the second hold until Somma executed the RMSCO separation

agreement. Although the terms of the separation had been agreed to earlier, the

parties did not execute it until the day before the second hold was lifted.

A grand jury sitting in the United States District Court for the Eastern

District of New York returned a superseding indictment charging Petitioner with

conspiracy to commit Hobbs Act extortion, in violation of 18 U.S.C. § 1951(a); Hobbs

Act extortion, in violation of 18 U.S.C. § 1951(a); conspiracy to commit federal

program bribery, in violation of 18 U.S.C. §§ 371 and 666(a); bribery, in violation of

18 U.S.C. § 666(a); conspiracy to commit honest services wire fraud, in violation of

18 U.S.C. §§ 1343, 1346, and 1349; and honest services wire fraud, in violation of 18

U.S.C. §§ 1343 and 1346. 1 The government’s core theory at trial was that Petitioner

received a bribe in connection with his oversight of Somma’s work with SchoolFood.

That bribe, in the government’s telling, constituted both a deprivation of honest

services and extortion. Before trial, the government moved in limine to admit

evidence about municipal conflict-of-interest rules that Petitioner did not comply

1 The owners of Somma were also charged with all of the same offenses, save

Hobbs Act extortion.

7

with, arguing that those violations showed Petitioner’s intent to engage in bribery.

Petitioner opposed, arguing that admitting such evidence would unduly blur the

line drawn in Skilling to separate bribery from undisclosed self-dealing. The district

court agreed with the government and admitted the evidence. Petitioner was

convicted on all counts and sentenced to 24 months’ imprisonment.

On appeal, Petitioner raised several arguments, including a challenge to the

constitutionality of the honest services wire fraud statute as applied to him and the

sufficiency of the evidence with respect to the Hobbs Act extortion count. The Court

of Appeals (Nardini, Lee, and Sack, JJ.) affirmed his convictions in a summary

order. In a footnote, that court “reject[ed] [Petitioner]’s challenge to the

constitutionality of the honest services statute (18 U.S.C. § 1346) and the

applicability of Hobbs Act extortion to bribery schemes” as “foreclosed by binding

Supreme Court precedent.” Pet. App. 04a. The summary order also agreed with the

district court that evidence regarding Petitioner’s undisclosed conflict of interest

was relevant to establishing his intent to engage in bribery. Pet. App. 10a–11a. It

further found that the government had proven a bribe by showing parallel timing of

the RMSCO separation agreement and the lifting of the second hold, along with

“evidence going back as far as spring of 2015 showing that Goldstein and the

SOMMA Defendants shared a close, inappropriate, and transactional relationship.”

Pet. App. 08a.

The Court of Appeals denied rehearing. Pet. App. 14a.

8

REASONS FOR GRANTING THE WRIT

I.

The Honest Services Wire Fraud Statute Is Unconstitutionally

Vague.

The prohibition on vague criminal laws “rests on the twin constitutional

pillars of due process and separation of powers.” United States v. Davis, 588 U.S.

445, 451 (2019).

The Fifth Amendment’s Due Process Clause prohibits the government from

“taking away someone’s life, liberty, or property under a criminal law so vague that

it fails to give ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement.” Johnson v. United States, 576

U.S. 591, 595 (2015) (citing Kolender v. Lawson, 461 U.S. 352 (1983)). “The

prohibition of vagueness in criminal statutes ‘is a well-recognized requirement,

consonant alike with ordinary notions of fair play and the settled rules of law,’ and

a statute that flouts it ‘violates the first essential of due process.’” Id. (quoting

Connally v. General Constr. Co., 269 U.S. 385 (1926)).

Vague laws also “hand off the legislature’s responsibility for defining criminal

behavior to unelected prosecutors and judges, and they leave people with no sure

way to know what consequences will attach to their conduct.” Davis, 588 U.S. at

448. “In that sense, the doctrine is a corollary of the separation of powers—

requiring that Congress, rather than the executive or judicial branch, define what

conduct is sanctionable and what is not.” Sessions v. Dimaya, 584 U.S. 148, 156

(2018).

9

Given these twin constitutional dimensions, this Court has not hesitated to

intervene and strike down vague criminal laws—especially when its previous efforts

to construe those laws have failed to provide any additional clarity. See, e.g.,

Johnson, 576 U.S. at 601–02. Such a “failure of persistent efforts to establish a

standard can provide evidence of vagueness.” Id. at 598 (cleaned up).

“Honest-services fraud and this Court’s vagueness jurisprudence are old

friends.” Percoco, 598 U.S. at 333 (Gorsuch, J., joined by Thomas, J., concurring).

The theory’s history is well-rehearsed. See, e.g., Skilling, 561 U.S. at 399–402. In

1909, Congress amended the federal fraud statute to prohibit “any scheme or

artifice to defraud, or for obtaining money or property by means of false or

fraudulent pretenses, representations, or promises.” Id. at 399–400; see also 18

U.S.C. §§ 1341 and 1343 (same). Seizing on that disjunctive language, lower courts

incorrectly “interpreted the term ‘scheme or artifice to defraud’ to include

deprivations not only of money or property, but also of intangible rights.” Skilling,

561 U.S. at 400.

But when it came to the particulars, “[e]ven the lower courts that devised the

theory could not agree. They clashed over everything from who owes a duty of

honest services to what sources of law may give rise to that duty to what sort of

actions constitute a breach of it.” Percoco, 598 U.S. at 333–34 (Gorsuch, J., joined by

Thomas, J., concurring). Some of these cases involved “public officials,” some

“private individuals who merely participated in public decisions,” and still others

“private employees who had no role in public decisions.” Skilling, 561 U.S. at 417

10

(Scalia, J., joined by Kennedy and Thomas, JJ., concurring). Yet “[n]one of the

‘honest services’ cases, neither those pertaining to public officials nor those

pertaining to private employees, defined the nature and content of the fiduciary

duty central to the ‘fraud’ offense.” Id. Indeed, “[t]here was not even universal

agreement concerning the source of the fiduciary obligation―whether it must be

positive state or federal law, or merely general principles, such as the ‘obligations of

loyalty and fidelity’ that inhere in the ‘employment relationship.’” Id.

In 1987, this Court intervened, holding in McNally v. United States that the

federal fraud statutes did not protect “the intangible right of the citizenry to good

government.” 483 U.S. 350, 356 (1987). Observing the breadth and diversity of

honest services cases in the lower federal courts, this Court concluded: “Rather than

construe the statute in a manner that leaves its outer boundaries ambiguous and

involves the Federal Government in setting standards of disclosure and good

government for local and state officials, we read § 1341 as limited in scope to the

protection of property rights. If Congress desires to go further, it must speak more

clearly than it has.” Id. at 360. The next year, Congress enacted § 1346, which

provides: “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to

deprive another of the intangible right of honest services.” But that law “clarified

nothing.” Percoco, 598 U.S. at 334 at 1140 (Gorsuch, J., joined by Thomas, J.,

concurring). “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.” Id.

11

In Skilling, this Court confronted a vagueness challenge to § 1346. Rather

than invalidate the statute outright, this Court limited § 1346 to “bribery and

kickback schemes.” 561 U.S. at 368. “Construing the honest-services statute to

extend beyond that core meaning, we conclude, would encounter a vagueness shoal.”

Id. As relevant here, Skilling expressly rejected the government’s argument that §

1346 also encompasses “undisclosed self-dealing by a public official or a private

employee―i.e., the taking of official action by the employee that furthers his own

undisclosed financial interests while purporting to act in the interests of those to

whom he owes a fiduciary duty.” Id. at 409. “[A] reasonable limiting construction of

§ 1346 “must exclude this amorphous category of cases.” Id. at 410; accord Black,

561 U.S. at 469, 474 (decided in tandem with Skilling, and holding it erroneous to

instruct jury “that a person commits honest services fraud if he ‘misuse[s] his

position for private gain for himself . . . ’ and ‘knowingly and intentionally

breache[s] his duty of loyalty’”).

Justice Scalia, joined by Justices Kennedy and Thomas, rejected the Skilling

majority’s effort to “define [a] new federal crime[].” Skilling, 561 U.S. at 415. As this

Court has since recognized, “[w]hen Congress passes a vague law, the role of courts

under our Constitution is not to fashion a new, clearer law to take its place, but to

treat the law as a nullity and invite Congress to try again.” Davis, 588 U.S. at 448.

More fundamentally, the dissenting Justices in Skilling correctly observed that “the

majority’s reconstruction of the statute failed to eliminate [its] vagueness.’” Percoco,

598 U.S. at 335 (Gorsuch, J., joined by Thomas, J., concurring) (quoting Skilling,

12

561 U.S. at 421 (Scalia, J., joined by Kennedy and Thomas, JJ., concurring)). As

relevant to Petitioner’s case, Justice Scalia observed that the Courts of Appeal

were—and would remain—divided on whether “some je-ne-sais-quoi beyond a mere

breach of fiduciary duty was needed to establish honest-services fraud.” Skilling,

561 U.S. at 419 (Scalia, J., joined by Kennedy and Thomas, JJ., concurring).

In Percoco, this Court shaved off one more unconstitutionally vague

application of § 1346: the Second Circuit’s rule that a private individual could be

convicted for breaching a fiduciary duty to the public if he “dominated and

controlled any governmental business” and “people working in the government

actually relied on him because of a special relationship he had with the

government.” 598 U.S. at 324–25. In particular, Percoco reiterated that § 1346 must

not be given “an indeterminate breadth that would sweep in any conception of

‘intangible rights of honest services’ recognized by some courts prior to McNally.”

598 U.S. at 328. Specifically, Percoco highlighted Skilling’s “rejection of the

Government’s argument that § 1346 should be held to reach cases involving

‘undisclosed self-dealing.’” Id. (quoting Skilling, 561 U.S. at 409–10). Justices

Gorsuch and Thomas wrote separately to express their growing unease with the

statute and express their doubt that it was capable of clarity: “[t]o this day, no one

knows what ‘honest-services fraud’ compasses.” Id. at 333 (Gorsuch, J., joined by

Thomas, J., concurring).

In sum, the concept of honest services wire fraud has been vague from the

outset. And despite this Court’s frequent attempts to define and limit the term over

13

the years, the reach of the statute has proved hopelessly indeterminate.

Uncertainty persists regarding “when the duty of honest services arises, what

sources of law create that duty, or what amounts to a breach of it.” Id. at 334

(Gorsuch, J., joined by Thomas, J., concurring). By leaving those questions

unanswered, § 1346 “provides no ‘ascertainable standard’ for the conduct it

condemns.” Skilling, 561 U.S. at 424 (Scalia, J., joined by Kennedy and Thomas,

JJ., concurring) (quoting United States v. L. Cohen Grocery Co., 255 U.S. 81, 89

(1921)). The result is that “private citizens”―the “main victims here”―lack “‘fair

notice of the conduct [§ 1346] punishes.’” Percoco, 598 U.S. at 336 (Gorsuch, J.,

joined by Thomas, J., concurring) (quoting Johnson v. United States, 576 U.S. 591,

595 (2015)). And, on the flip side, the statute’s indeterminacy “invites abuse by

headline-grabbing prosecutors in pursuit of local officials, state legislators, and

corporate CEOs who engage in any manner of unappealing or ethically questionable

conduct.” Sorich v. United States, 555 U.S. 1204 (2009) (Scalia, J., dissenting from

denial of certiorari).

Petitioner’s case shows precisely the concerns Justice Scalia raised nearly

two decades ago. The government’s theory of prosecution was that Petitioner used

his official position to benefit RMSCO, and thereby himself. Petitioner conceded

that he operated under a conflict of interest by starting the RMSCO venture with

Somma while he was an official overseeing Somma’s contracts with the New York

City Department of Education, and that he failed to disclose that conflict of interest.

But “mere failure to disclose a conflict of interest” is not honest services wire fraud.

14

Skilling, 561 U.S. at 410. To convict Petitioner under Skilling’s construction of the

statute, therefore, the government had to show some affirmative bribe or kickback.

The district court permitted the government to prove the existence of a bribe

through extensive evidence about undisclosed self-dealing, holding that such

evidence was relevant to establishing the corrupt state of mind showing a bribe.

And the Court of Appeals affirmed Petitioner’s conviction by treating his

undisclosed conflict of interest as evidence that he in fact received a bribe,

satisfying Skilling. The panel found that the inference of a bribe was bolstered by

evidence that Petitioner and Somma “shared a close, inappropriate, and

transactional relationship.” Pet. App. 08a. 2 The panel observed that Petitioner

failed to disclose his relationship with Somma as a potential conflict of interest,

showing that he “wanted to conceal his relationship with the SOMMA Defendants

precisely because it was infected by bribery.” Id.

Put differently, the Court of Appeals determined that the undisclosed selfdealing could not itself establish liability, but established that Petitioner, in the

course of the undisclosed self-dealing relationship, received a bribe—which did

establish liability. So construed, how could any reasonable person reliably

understand when undisclosed self-dealing is criminal and when it isn’t? Forty years

2 The Court of Appeals also found the inference of the bribe strengthened by

evidence that Goldstein “dragged his feet on lifting the hold until the RMSCO

contract was executed,” Pet. App. 08a, and sent one email to Twomey asking about

the status of the RMSCO separation agreement. Id.

15

of this Court’s jurisprudence have yielded little clarity. Enough is enough; this

Court should grant the petition and hold 18 U.S.C. § 1346 unconstitutionally vague.

The question is of great significance and is recurring; in fact, a petition presenting

this very issue was relisted for conference in Avenatti v. United States, No. 236753—though the petition was ultimately denied, with Justice Kavanaugh recused.

II.

Acceptance Of A Bribe Is Not Hobbs Act Extortion.

Petitioner was charged with substantive and conspiracy Hobbs Act extortion

offenses “under color of official right.” His alleged coconspirators were the three men

he purportedly extorted. In Evans, this Court held that Hobbs Act extortion “under

color of official right” requires nothing more than “acceptance of [a] bribe[;]” such

extortion was not “limited to wrongful taking under a false pretense of official

right.” 504 U.S. at 269 (emphasis in original).

Evans has spawned criticism since the day it was decided. In Evans itself,

Justice O’Connor opined that the Court should not have reached this issue given the

limited question presented. See id. at 272 (O’Connor, J., concurring). And Justices

Thomas, Rehnquist, and Scalia dissented because a thorough review of the common

law persuaded them that Hobbs Act extortion under color of official right was not

bribery:

The ‘under color of office’ element of extortion … had a

definite and well-established meaning at common law. ‘At

common law it was essential that the money or property

be obtained under color of office, that is, under the

pretense that the officer was entitled thereto by virtue of

his office. The money or thing received must have been

16

claimed or accepted in right of office, and the person

paying must have yielded to official authority.’

Id. at 279 (Thomas, J., dissenting) (citations omitted and emphasis in original).

Thus, at common law, bribery and extortion were distinct and distinguishable

offenses:

Where extortion is at issue, the public official is the

sole wrongdoer; because he acts ‘under color of

office,’ the law regards the payor as an innocent

victim and not an accomplice. . . . With bribery, in

contrast, the payor knows the recipient official is

not entitled to the payment; he, as well as the

official, may be punished for the offense. . . .

Congress is well aware of the distinction between

the crimes; it has always treated them separately.

Id. (citations omitted).

In subsequent years, other Justices and commentators have continued to

question Evans and its outgrowths, voicing concern that Evans defines Hobbs Act

extortion too broadly. See, e.g., Silver141 S. Ct. at 656–57 (Gorsuch, J., dissenting

from denial of certiorari) (“Normally, extortion and bribery are treated as distinct

crimes. In Evans v. United States, . . . however, this Court conflated them for

purposes of the Hobbs Act when a public official is the defendant. . . . I would have

granted this case to reconsider Evans . . . .”); Ocasio, 578 U.S. at 300 (Breyer, J.,

concurring) (“I agree with the sentiment expressed in the dissenting opinion of

Justice Thomas that Evans v. United States, . . . may well have been wrongly

decided.”); Kate Stith, No Entrenchment: Thomas on the Hobbs Act, the Ocasio Mess,

and the Vagueness Doctrine, 127 Yale L.J. Forum 233, 239 (2017) (discussing

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Justice Thomas’s “prescient” dissent in Evans and concluding “[t]he bottom line:

Evans was wrong”). This Court should intervene and correct Evans’s error.

III.

This Court’s Intervention Is Needed To Protect The Unique

Federalism Concerns Implicated By Federal Bribery Law.

Federal law “leaves much public corruption to the States (or their electorates)

to rectify.” Kelly, 590 U.S. at 399 (2020). In our Federalist system, states have “the

prerogative to regulate the permissible scope of interactions between state officials

and their constituents.” McDonnell, 579 U.S. at 576. So federal bribery laws must

occupy a narrow field, since “[t]he basic compact underlying representative

government assumes that public officials will hear from their constituents and act

appropriately on their concerns[.]” Id. at 575 (emphasis in original).

Federal corruption laws implicate unique Federalism concerns. A public

official acting in manners that may benefit particular members of his constituency

“is the everyday business” of government. McCormick v. United States, 500 U.S.

257, 272 (1991). Given the often-fine line between a public official responding to

constituents’ needs and acting corruptly for certain constituents’ benefits, federal

law largely defers to states: “A State defines itself as a sovereign through the

structure of its government,” which “includes the prerogative to regulate the

permissible scope of interactions between state officials and their constituents.”

McDonnell, 579 U.S. at 576. Federal bribery laws are not vehicles for “setting

standards of good government for local and state officials.” Id. at 577 (internal

quotation marks omitted).

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This Court has thus repeatedly emphasized the need to read federal bribery

laws narrowly. “Congress does not lightly override state and local governments on

such core matters of state and local governance.” Snyder v. United States, 603 U.S.

1, 15 (2024). State and local officials are already subject to “an intricate web of

regulations, both administrative and criminal, governing the acceptance of gifts and

other self-enriching actions by public officials.” Id. Respect for the balance of federal

and state authority thus counsels in favor of “narrow, rather than a sweeping,

prohibition” under federal law. Id.

Both the indeterminacy of honest services wire fraud and the expansive

definition of Hobbs Act extortion create a “pall of potential prosecution” for public

officials. McDonnell, 579 U.S. at 575. Today, it is the rare public official who is

never given a single thing of value from any constituent. Officials receive all sorts of

things, from “jerseys given by championship sports teams,” United States v. SunDiamond Growers of California, 526 U.S. 398, 407 (1999), to “gift card[s] from a

neighbor as thanks,” Snyder, 603 U.S. at 14, to campaign contributions themselves,

McDonnell, 579 U.S. at 575. Which of those gifts becomes honest services wire fraud

or extortion turns more on whether they are investigated by Justice Scalia’s

“headline-grabbing prosecutor” than on any meaningful distinction. That threat of

liability weakens “the basic compact underlying representative government,” which

“assumes that public officials will hear from their constituents and act appropriately

on their concerns.” Id. (emphasis in original).

*

*

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*

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

By: /s/ Ashok Chandran______

Ashok Chandran

Counsel of Record

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

(212) 417-8743

ashok_chandran@fd.org

August 11, 2026

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