Page:Percoco v. United States.pdf/12

Rh that a person nominally outside public employment can never have the necessary fiduciary duty to the public. 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. An “agent owes a fiduciary obligation to the principal,” see, e.g., 1 Restatement (Third) of Agency §1.01, Comment e, p. 23 (2005), and therefore an agent of the government has a fiduciary duty to the government and thus to the public it serves. In this Court, Percoco has agreed that individuals who are “delegated authority to act on behalf” of a public official and to perform government duties have a duty to provide honest services. Tr. of Oral Arg. 12; see also Brief for Petitioner 22, 24, 37; Reply Brief 9. This well-established principle suffices to confirm that the lower courts correctly rejected Percoco’s per se rule and, in doing so, did not stretch §1346 past heartland cases. See Skilling, 561 U. S., at 408.

Rejecting this absolute rule, however, is not enough to sustain Percoco’s convictions on the wire fraud conspiracy counts. “[T]he intangible right of honest services” codified in §1346 plainly does not extend a duty to the public to all private persons, and whether the correct test was applied in this case returns us to Margiotta.

Percoco challenges the Margiotta theory that underlay the jury instructions in this case, and we must therefore decide whether those instructions are correct. We hold that they are not.

Directly applying Margiotta, the trial judge told the jury that Percoco owed a duty of honest services to the public if (1) he “dominated and controlled any governmental business” and (2) “people working in the government actually