# Percoco v. United States/Opinion of Justice Gorsuch

SUPREME COURT OF THE UNITED STATES
No. 21–1158
JOSEPH PERCOCO, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [May 11, 2023]
Justice Gorsuch, with whom Justice Thomas joins, concurring in the judgment.
The Court holds that the jury instructions in this case were “too vague.” Ante, at 10. I agree. But to my mind, the problem runs deeper than that because no set of instructions could have made things any better. To this day, no one knows what “honest-services fraud” encompasses. And the Constitution’s promise of due process does not tolerate that kind of uncertainty in our laws—especially when criminal sanctions loom. “Vague laws” impermissibly “hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).
Honest-services fraud and this Court’s vagueness jurisprudence are old friends. The story traces back to the early 1940s when a string of lower courts began stretching the federal mail-fraud statute’s phrase “scheme or artifice to defraud.” 18 U. S. C. §1341. Everyone understood that the phrase covers efforts to swindle money or property. But some lower courts began suggesting that the phrase also sweeps in schemes to deprive others of “intangible rights,” including the right to “honest services.” Skilling v. United States, 561 U. S. 358, 400 (2010) (citing cases). What did this new “honest-services fraud” concept encompass? Even ​the lower courts that devised the theory could not agree. They clashed over everything from who owes a duty of honest services to what sources of law may give rise to that duty to what sort of actions constitute a breach of it. See id., at 416–420 (Scalia, J., concurring in part and concurring in judgment).
Eventually, that uncertainty demanded this Court’s attention. In McNally v. United States, 483 U. S. 350 (1987), the Court held that, while §1341 “clearly protects property rights,” it does not protect more abstract interests like a right to “honest … government.” Id., at 355, 356. McNally rested, in no small part, on vagueness concerns. Any other interpretation, the Court emphasized, would leave the law’s “outer boundaries ambiguous.” Id., at 360. If Congress wanted to extend the law to protect more than property rights, the Court added, “it must speak more clearly than it has.” Ibid.
Soon Congress did speak. It enacted §1346, which now defines the phrase “scheme or artifice to defraud” to include “a scheme or artifice to deprive another of the intangible right of honest services.” In one sense, the new law did offer clarity. It dispelled any doubt about whether Congress intended the mail-fraud statute (and later the wire-fraud statute, §1343) to protect a right to “honest services.” But in another sense, the law clarified nothing. Congress did not address McNally’s concern that the phrase “honest-services fraud” is unworkably vague. Nothing in the new law attempted to resolve when the duty of honest services arises, what sources of law create that duty, or what amounts to a breach of it. Nor did the new law cross-reference any portion of the federal criminal code that might have lent clarity to the concept.
These problems resurfaced in Skilling. There, a majority of the Court acknowledged that a “vagueness challenge [to §1346] ha[d] force.” 561 U. S., at 405. But instead of ​“throw[ing] out the statute as irremediably vague,” the majority elected to fill in some of the blanks. Id., at 403–404. To that end, the majority “look[ed] to the doctrine” of honest-services fraud as it had developed in the lower courts “in pre-McNally cases.” Id., at 404. Recognizing the many internal tensions in that line of cases, the majority attempted to “pare that body of precedent down to its core.” Ibid. What exactly falls within that “core”? The majority could not say. All it could muster was that, “[i]n the main,” honest-services convictions had involved “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.” Ibid.
Justice Scalia, Justice Kennedy, and Justice Thomas declined to participate in Skilling’s rescue mission. They saw the Court’s decision as an act of “not interpretation but invention.” Id., at 422 (opinion of Scalia, J.). Nothing in the statute, they observed, confined breaches of the duty of honest services to bribes or kickbacks. Indeed, not a single lower court had understood the concept to be limited in that way. Id., at 423. Nor could the dissenters find anything in the judicial power permitting them to “replac[e] a vague criminal standard that Congress adopted with a more narrow one (included within the vague one).” Id., at 422.
Even on its own terms, the dissenters noted, the majority’s reconstruction of the statute failed “to eliminate [its] vagueness.” Id., at 421. The majority had not attempted to define what constitutes a breach of the “ ‘honest services’ obligation,” but sought to identify only conduct that fell within its “core.” Ibid. Nor had the majority done anything to “solve the most fundamental indeterminacy” in honest-services-fraud theory, ibid., for nothing in its decision explained what kinds of fiduciary relationships are sufficient to trigger a duty of honest services in the first place. Is the duty of honest services limited “to public officials” serving ​the government? Ibid. Does it also apply “to private individuals who contract with the public?” Ibid. Or does it apply to “everyone” who owes some sort of fiduciary responsibility to others, including (say) a corporate officer? Ibid. What source of law, too, should a court consult to answer these questions? Must a fiduciary duty arise from positive state or federal law, or can it arise from general trust law, “a corpus juris festooned with various duties”? Id., at 417–418. All these questions, the dissenters observed, had long divided lower courts and remained unanswered.
Today, the Court returns to these quandaries. The jury instructions in this case sought to identify at least one instance when a duty of honest services arises—namely, when a private individual has “ ‘dominated and controlled any governmental business’ ” and “ ‘people working in the government actually relied on him because of a special relationship he had with the government.’ ” Ante, at 9–10. But that formulation, the Court holds, is “too vague” to pass constitutional muster. Ante, at 10. That is so, the Court reasons, because it could result in the conviction of anyone whose “clout exceeds some ill-defined threshold” and thus sweep in “effective lobbyists” exercising their First Amendment right to petition the government. Ibid. The Court also pauses briefly to address two alternative tests the government suggests for defining when a duty of honest services may attach. But the Court takes no view on the first and rejects the second. Ante, at 11–12. In the end, we may now know a little bit more about when a duty of honest services does not arise, but we still have no idea when it does.
It’s a situation that leaves prosecutors and lower courts in a bind. They must continue guessing what kind of fiduciary relationships this Court will find sufficient to give rise to a duty of honest services. For them, it is back to the drawing board in their indictments and their jury instructions. But they are not the main victims here. That plight belongs to private citizens. In this country, a criminal law ​is supposed to provide “ordinary people fair notice of the conduct it punishes.” Johnson v. United States, 576 U. S. 591, 595 (2015); see also Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Yet even 80 years after lower courts began experimenting with the honest-services-fraud theory, no one can say what sort of fiduciary relationship is enough to sustain a federal felony conviction and decades in federal prison.
To be sure, I cannot fault the Court for the problem. The difficulty here stems from the statute and the lower court decisions that inspired it. I have no doubt that if all nine Justices put our heads together, we could rewrite §1346 to provide fair notice and minimize the risk of uneven enforcement. I have no doubt, too, that we could find a hook for any such rule somewhere in the morass of pre-McNally lower-court case law. Maybe, too, that is the path we are on, effectively writing this law bit by bit in decisions spanning decades with the help of prosecutors and lower courts who present us with one option after another. But that is not a path the Constitution tolerates. Under our system of separated powers, the Legislative Branch must do the hard work of writing federal criminal laws. Congress cannot give the Judiciary uncut marble with instructions to chip away all that does not resemble David. See United States v. Reese, 92 U. S. 214, 221 (1876) (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large”); United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J.) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment”).
Doubtless, Congress had high and worthy intentions when it enacted §1346. But it must do more than invoke an aspirational phrase and leave it to prosecutors and judges to make things up as they go along. The Legislature must ​identify the conduct it wishes to prohibit. And its prohibition must be knowable in advance—not a lesson to be learned by individuals only when the prosecutor comes calling or the judge debuts a novel charging instruction. Perhaps Congress will someday set things right by revising §1346 to provide the clarity it desperately needs. Until then, this Court should decline further invitations to invent rather than interpret this law.