Page:Percoco v. United States.pdf/14

Rh as an accurate statement of the law, but it argues that their imprecision was harmless. Specifically, the Government argues that a private individual owes a duty of honest services to the public “in two discrete circumstances”: (1) “when the person has been selected to work for the government” in the future and (2) “when the person exercises the functions of a government position with the acquiescence of relevant government personnel.” Brief for United States 25; cf. 18 U. S. C. §201(b) (federal bribery statute incorporating “person[s] selected to be a public official”).

The first theory differs substantially from the jury instructions, which did not tell the jury that Percoco could be found to owe a duty of honest services because he had been selected for future government service. While the prosecution offered evidence that Percoco intended to return to government service after the election and had made plans to do so, the jury could have found that the requirements set out in the jury instructions were satisfied without relying on that evidence. Thus, even if we assume for the sake of argument that there is some merit in the Government’s first new theory, it is far from clear that the erroneous jury instructions would be harmless.

The Government’s second new theory—i.e., that a private citizen owes a duty to render honest services “when the person exercises the functions of a government position with the acquiescence of relevant government personnel”—appears, as defined in its brief, to restate Margiotta’s erroneous construction of the law. See Brief for United States 33 (instructions “as a whole and in the context of this case …