What a new assessment by the Supreme Court could mean for Albany’s graft culture
Joseph Percoco and his taste for “ziti.” Alain Kaloyeros and his six-digit Ferrari. Joseph Bruno and a bad racehorse named Christy’s Night Out.
Albany has created countless stories of corruption over the past decade, as figure after figure – from the speaker for the assembly to the head of the state senate – was convicted in lawsuits focused on abuses of public trust. Federal prosecutors in Manhattan persistently pursued allegations of corruption in the capital, revealing a culture of secrecy and self-dealing.
But in important decisions over the past dozen years, the US Supreme Court has restricted the law governing corruption, resulting in the repeal of at least three prominent former New York lawmakers. And with the court’s announcement on June 30 that it would review the 2018 high – profile verdicts of two men closely identified with former Gov. Andrew M. Cuomo’s administration, legal experts say the judges may be ready to further limit what constitutes a graft – and therefore what is illegal in the capital of New York.
“The court wants to prevent the criminalization of what it considers normal policy,” said Daniel C. Richman, a law professor at Columbia Law School and former federal prosecutor. “But the narrow notion of what should be a federal crime often seems to omit everything but the sale of one’s office for a sack of cash.”
In a case that the Supreme Court will consider, Percoco, a former senior Cuomo assistant, was found guilty of accepting more than $ 300,000 in bribes from executives working for state-owned companies. In the second, Mr. Kaloyeros, the state’s ostentatious former nanotechnology tsar, who was recognized for turning Albany into an unlikely center for high-tech research, was found guilty along with three business leaders in a tender rigging scandal involving so-called Buffalo Billion, Mr. Cuomo’s signature plan for upstate revitalization.
On July 1, Judge Valerie E. Caproni of the Federal District Court granted bail for release from Kaloyeros and the three leaders pending the Supreme Court’s assessment.
The decision to review the cases illustrates the difficulty of upholding such convictions at a time when the Supreme Court has put federal corruption prosecutions under increasingly harsh scrutiny.
“There is skepticism or perhaps unrest about how the law should draw the line between money in politics and crime in a system that is flooded with money that is meant to influence the government, and is perfectly legal,” said Samuel Buell, a former federal prosecutor. who teaches criminal law at Duke University in North Carolina.
A dozen years ago, the court curtailed the scope of a law used in corruption cases that makes it a crime to “deprive another of the intellectual property right to honest services” and limit its use to offenses involving bribery and setbacks.
Following the ruling, a federal appeals court in New York overturned the conviction of Mr. Bruno, the state Senate’s former Republican majority leader, who in 2009 in Albany was found guilty of two cases of mail fraud. Among the charges was that he received tens of thousands of dollars in bribes from a businessman from Albany disguised as a payment for Christy’s Night Out, a deeply unsuccessful racehorse. Bruno was tried again in 2014 and acquitted.
The trend continued in 2016, when the Supreme Court unanimously overturned the conviction of Bob McDonnell, the former Republican governor of Virginia, and further limited the kind of quid-pro-quo actions that could constitute corruption. There had to be formal and concrete actions performed by an official, such as filing a lawsuit or making an administrative decision, not just routine political courtesies such as arranging meetings, the court said.
In the wake of that ruling, the convictions of two of New York’s most prominent former lawmakers – Sheldon Silver, the speaker of the once powerful Democratic Assembly, and Dean G. Skelos, another former Republican Senate Majority Leader, were overturned on appeal. Both men were tried again, sentenced and sentenced to prison.
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And two years ago, in the so-called Bridgegate scandal, the Supreme Court unanimously overturned the convictions of two employees of New Jersey’s Republican Gov. Chris Christie for trying to punish one of Mr. Christie’s political opponents by creating a traffic jam on George. Washington Bridge. The court called the act an abuse of power, but not a federal crime.
The prosecution of Mr. Percoco and Mr. Kaloyeros, along with Mr. Silver and Mr. Skelos, were all part of a widely publicized campaign against official corruption led by Preet Bharara, the U.S. Attorney for the Southern District of New York, and his successors. , which leads to convictions and imprisonment for a number of state legislators.
“When politician after politician after politician elected by the electorate falls for criminal charges, people lose faith,” Bharara said in 2015, the day after the charges were announced against Silver.
The possibility that recent New York judgments are now in jeopardy has made veteran observers of Albany – so famous for the abuse that it has an online museum devoted to it – all the more discouraged, especially in the face of often weak efforts by New York lawmakers. and governors to eradicate lawlessness and corruption.
“Between loophole-filled state laws and a limited opportunity for federal prosecutors to police corruption, you’re going to end up with even more of an ethically wild West than it used to be,” said Blair Horner, CEO of the New York Public Interest Research Group. , a good government organization.
Mr. Percoco’s trial cast a shadow over Mr Cuomo’s administration, although the governor was not charged with any offense. E-mail exchanges between Mr. Percoco and an employee showed that they were joking and worried about bribes, which they referred to by the code name ziti, a term taken from the HBO drama “The Sopranos”.
“I have no ziti,” Mr. Percoco wrote in a message. In another he demanded: “Where the hell is zitien ???”
Judge Caproni said before sentencing Percoco to six years in prison, “I hope this verdict will be heard in Albany.”
The Supreme Court agreed to review part of Mr. Percoco’s case in which he was convicted of having acted in favor of a developer in the Syracuse area in exchange for $ 35,000 in bribes. His lawyers have claimed that the actions took place after Percoco left the government to lead Cuomo’s re-election campaign.
The lawyer’s office, which represents the federal government in the Supreme Court, asked the court to deny the report, claiming that Percoco still functioned effectively as a public servant after leaving the post temporarily. It said he kept his desk and telephone in the governor’s executive chamber and “maintained control over official matters.”
Mr. Percoco’s lawyer, Yaakov M. Roth, said in a statement this week that he was grateful the case would be reviewed, and he hoped the court “would both justify Joe and confirm, more generally, the basic line between public officials and private citizens. “
In the second case considered, Kaloyeros and three executives – Louis Ciminelli of LPCiminelli, a construction management company in Buffalo, and Steven Aiello and Joseph Gerardi of COR Development, a company in the Syracuse area – were all convicted in a conspiracy to control. lucrative government contracts in the Buffalo Billion project to executives’ firms.
Prosecutors said the defendants tailored requests for proposals to include qualifications that would ensure the contracts would go to the companies. Back in the dark about the scheme was Fort Schuyler Management Corporation, a nonprofit real estate division of the SUNY Polytechnic Institute that oversaw the contract process.
The prosecution hung on to a legal regulation known as the “right to control”, in which the government claimed that the fraud did not involve money but financially valuable information, with the Fort Schuyler victim, unaware of the bidding manipulation.
“This case is about Fort Schuyler’s right to control who they did business with and on what terms,” said Professor Richman, who noted that he consulted with Gerardi’s defense team.
When the man’s lawyers asked the court to review the case, he claimed that there was no evidence that the scheme had deprived Fort Schuyler of a fair price or quality workmanship. They said that the federal fraud statutes only prohibit schemes aimed at money or property, not just the deprivation of information.
Mr. Ciminelli’s lawyer, Michael R. Dreeben, said he was grateful the court would address their “challenge to the validity of the right-to-control theory used in the prosecution.” Michael C. Miller, attorney for Mr. Kaloyeros, said his client and his legal team “are very much looking forward to the Supreme Court’s decision in this important case.”
Alexandra AE Shapiro, a lawyer for Mr Gerardi and Mr Aiello, said she was pleased that the court “will consider setting limits on the broad way in which some prosecutors have used the federal fraud statutes.”
“It is one thing for prosecutors to focus on individuals who intend to cause financial harm, but something completely different is that they spin theories about something as abstract and vague as ‘the right to control,'” she said. “Everyone benefits when the law has clear boundaries.”
The lawyer’s office and the US law firm in Manhattan both declined to comment.
Jesse McKinley contributed with reporting.