Page:Percoco v. United States.pdf/11

8 Because the pre-McNally lower court decisions involving such conduct were “inconsisten[t],” we concluded that this “amorphous category of cases” did not “constitute core applications of the honest-services doctrine.” 561 U. S., at 410.

Skilling’s teaching is clear. “[T]he intangible right of honest services” must be defined with the clarity typical of criminal statutes and should not be held to reach an ill-defined category of circumstances simply because of a smattering of pre-McNally decisions. With this lesson in mind, we turn to the question whether the theory endorsed by the lower courts in this case gave §1346 an uncertain breadth that raises “the due process concerns underlying the vagueness doctrine.” See 561 U. S., at 408.

As noted, Percoco moved before trial for dismissal of the honest-services conspiracy count at issue on the ground that he was out of public office during part of the time period within the indictment and that a private citizen cannot be convicted of depriving the public of honest services. See Defendant’s Memorandum of Law in Support of Motion To Dismiss the Superseding Indictment in No. 1:16–cr–00776 (SDNY, May 19, 2017), ECF Doc. 187, pp. 25–30. He advanced a similar theory in his motion for acquittal, emphasizing that he was acting under “a short-term agreement [with Aiello’s firm] within the period in which he was no longer a state employee.” 1 App. 447.

On this point, Percoco’s arguments sweep too broadly. To be sure, the pre-McNally record on honest-services fraud is clearest when the Government seeks to prosecute actual public officials. Most of the pre-McNally honest-services prosecutions, including what appears to be the first case to adopt that theory, involved actual public officials. See Skilling, 561 U. S., at 400–401 (citing Shushan v. United States, 117 F. 2d 110, 115 (CA5 1941)). But we reject the argument