Page:Percoco v. United States.pdf/6

Rh bribes and gratuities, in violation of §666(a)(1)(B); and three counts of Hobbs Act extortion, in violation of §1951. 1 App. 96–103. Only the wire fraud conspiracy count relating to the labor-peace requirement (count 10) is directly at issue before this Court.

That count alleged a conspiracy running “[f]rom at least in or about 2014, up to and including in or about 2015,” that is, both during the time when Percoco was formally employed in the Governor’s office and during the period when he was working on the Governor’s campaign. See id., at 100 (incorporating ¶4 and ¶¶33–35 of the indictment). Before trial, Percoco moved for dismissal of that count—and another conspiracy count overlapping with the campaign period—on the ground that a private citizen cannot commit or conspire to commit honest-services wire fraud based on his own duty of honest services to the public. See id., at 130, 133. The District Court denied that motion, noting that the indictment alleged that Percoco, while formally working on the Governor’s campaign, had “ ‘continued to function in a senior advisory and supervisory role with regard to the Governor’s Office’ ” and had “ ‘continued to be involved in the hiring of staff and the coordination of the Governor’s official events and priorities … among other responsibilities.’ ” Id., at 133 (quoting id., at 77, Indictment ¶4).

At trial, the prosecution introduced evidence to support the indictment’s allegations about Percoco’s activities during his break in official service, as well as evidence that he had expressed his intent and had made plans to resume official service after the election. See 13 F. 4th 180, 201–203 (CA2 2021). At the end of the prosecution’s case, Percoco again moved for judgment of acquittal on count 10, contending that no evidence showed that he had taken any act in furtherance of that conspiracy while serving in an official government capacity. Id., at 187.

The court reserved decision on that motion, ibid., and the