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Public Corruption Prosecutions in New York

By Daniel G. Cort and Daniel R. Alonso

The Supreme Court's decision in Skilling v. United States, 561 U.S. ___ (2010), in which the Court limited the federal honest services mail fraud doctrine to cases involving bribes and kickbacks, dealt the federal government a setback. For years, the Justice Department (DOJ) had delved into local public corruption matters under the guise of protecting the citizenry from schemes designed to deprive them of the faithfulness of their officials. Whereas earlier honest services prosecutions tackled undisclosed self-dealing in public contracts and other secret financial interests that did not necessarily rise to the level of quid pro quo bribery, Skilling ensures that the federal government will now be as circumscribed as state prosecutors have been, limited to actual bribery and kickbacks.

In other words, to prosecute state actors for bribery, the government now needs to live, essentially, by state rules. The contours of the Skilling decision are beyond the scope of this article, which will focus instead on the example of New York State and the prosecution of public corruption offenses under that state's law. Although federal and state prosecutors in New York who wish to prosecute state and local officials after Skilling are now on similar footing with respect to bribery, New York prosecutors have several additional tools in their arsenal. A case in point is the recent prosecution of former New York State comptroller Alan Hevesi, discussed below, in which then Attorney General Andrew Cuomo effectively used a statute other than bribery to prosecute public corruption.

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