18- 2990(L), 19 -1272(Con) United States v. Percoco 

# United States Court of Appeals **For the Second Circuit** 

August Term 20 19 Argued: March 12 , 20 20 Originally Decided: September 8 , 202 1 Reversed and Remanded : May 11, 2023 Decided: September 5 , 2023
No s. 18- 2990(L), 19

- 1272(Con)

U NITED S TATES OF A MERICA , Appellee ,

v. J OSEPH P ERCOCO , S TEVEN A IELLO , J OSEPH G ERARDI ,

L OUIS C IMINELLI , A LAIN K ALOYEROS , AKA D R
. K, Defendants

- Appellants , P ETER G ALBRAITH K ELLY , J R ., M ICHAEL L AIPPLE , K EVIN S C HULER , Defendants

.

R emand from the Supreme Court of the United States , No. 21

- 1158

.2 Before: R AGGI , C HIN , and S ULLIVAN , Circuit Judges

. Defendant

- Appellant Joseph Percoco appeal ed from a judgment of conviction entered in the United States District Court for the Southern District of New York (Caproni, J. ) , after a jury found him guilty of two counts of conspiracy to commit honest

- services wire fraud (Counts Nine and Ten), and one count of s olicitation of bribes and gratuities (Count Eleven)

. Finding no merit in the arguments raised on appeal , we affirmed the judgment of the district court. See United States v. Percoco , 13 F.4th 180 (2d Cir. 2021). Percoco then petitioned the Supreme Court for review, asking that Court to decide, as pertinent to Count Ten, whether a private citizen who has informal political or other influence over governmental decision

- making can be c onvicted of honest

- services fraud. T he Supreme Court reversed our judgment

– holding that the district court’s jury instructions , based on our decades

- old decision in United States v. Margiotta , 688 F.2d 108 (2d Cir. 1982) , w ere clearly erroneous
– and re manded for further proceedings. See Percoco v. United States , 598 U.S. 319 (202 3 ). Having given due consideration to the Supreme Court’s decision in Percoco , we now AFFIRM Percoco’s convictions and sentences on Counts Nine and Eleven for the reasons set forth in our prior opinion , VACATE his conviction and sentence on Count Ten, and REMAND to the district court for further proceedings consistent with this opinion.
A FFIRMED I N P ART , V ACATED I N P ART , AND R EMANDED
. M ICHAEL L. Y AEGER , Carlton Fields, P.A., New York, NY (Walter P. Loughlin, New York, NY, on the brief s ) , for Defendant

- Appellant Joseph Percoco

. M ATTHEW D. P ODOLSKY ( Robert L. Boone, Jani s M. Echenberg, Won S. Shin, on the brief ), Assistant United States Attorney s, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY , for Appellee

.3 P ER C URIAM : In 2019, Defendant

- Appellant Joseph Percoco appealed from a judgment of
conviction entered in the United States District Court for the Southern District of
New York ( Valerie E. Caproni, J. ), after a jury found him guilty of two counts of conspiracy to commit honest

- services wire fraud , in violation of 18 U.S.C. § 1349 (Counts Nine and Ten), and one count of solicitation of bribes and grat uities , in violation of 18 U.S.C. §§ 666(a)(1)(B) and 2 (Count Eleven )

. Before this Court , Percoco challenge d (among other things) the district court’s instruction s on Count
Ten that he could be liable for actions that he agreed to undertake while he was not formally employed as a state official. Finding that t he district court’s
instruction s fit comfortably within our decades

- old decision in United States v. Margiotta , 688 F.2d 108 (2d Cir. 1982) , and finding no merit in the other arguments raised on app eal, we affirmed the judgment of the district court. See United States
v. Percoco , 13 F.4th 180 (2d Cir. 2021)

. In 2022, Percoco petitioned the Supreme Court for review, asking that Court to decide, as pertinent to his conviction on Count Ten, “whether a private citizen who has informal political or other influence over governmental decision[

- ]making can be convicted of honest

- services fraud.” Percoco v. United4 States , 598 U.S. 319 , 325 (2023) (internal quotation marks omitted); see also id. at 325 n.2 (noting that “Percoco did not petition for review of the Second Circuit’s affirmance of the two other convictions relating to additional conduct”)

. The Supreme Court gran ted certiorari, Percoco v. United States , 142 S. Ct. 2901 (2022),
reversed this Court’s judgment , and remanded for further proceedings, see Percoco , 598 U.S. at 333

. Upon the case returning to us, Percoco and the government filed
a letter jointly “ request [ing] that the Court vacate Percoco’s conviction and sentence on Count Ten, affirm Percoco’s convictions and sentences on Counts
Nine and Eleven, and remand so that the [g] overnment may move to dismiss
Count Ten and the [d] istrict [c] ourt may amend the jud gment to remove the penalties imposed for the conviction on Count Ten while leaving intact the penalties imposed for the convictions on Counts Nine and Eleven. ” Doc. No. 520 at 2; see also id. (“ recognizing that this Court ordinarily remands for resentenc ing when vacating fewer than all of a defendant’s convictions on direct appeal, ” but stating that “ Percoco waives any resentencing with respect to his remaining
convictions on Counts Nine and Eleven ”). 1

1 On remand, Percoco has abandoned any argument that vacating his conviction on Count Ten also necessitates vacating his convictions on Counts Nine and Eleven due to prejudicial spillover. Compare Doc. No. 520, with Percoco , 598 U.S. at 325 n.2.5 Having given due consideration to the Supreme Court’s decision in Percoco , we agree with the parties’ proposal. As an initial matter, b ecause our previous analysis o f Counts Nine and Eleven is unaffected by the Supreme Court’s decision , we affirm Percoco’s convictions and sentences on those c ounts for the reasons stated in our prior opinion

. See Percoco , 13 F.4th at 188

– 92 ( concluding that the
error in the so

- called “as opportunities arise” jury instruction was harmless ) ; id. at
197

– 98 ( rejecting Percoco’s challenge to the gratuity jury instruction ) ; id. at 199

– 2 01 ( rejecting Percoco’s sufficiency

- of

- evidence challenge ) ; id. at 202

– 03 ( rejecting Percoco’s challenge to a portion of the forfeiture order ) ; see also Escalera v. Coombe , 852 F.2d 45, 47 (2d Cir. 1988) (“Any reconsideration at t his juncture of our earlier opinion must be limited to the scope of the Supreme Court’s remand.”). The same, however, cannot be said with respect to our previous analysis of Count Ten. Although the Supreme Court held that a private citizen “ nominally outside public employment” can , in certain circumstances , be convicted of defrauding the public
of honest services, Percoco , 598 U.S. at 329

– 30 , it nonetheless concluded that the Margiotta

- based jury instructions given at trial in this case were erroneous, and that “it [was] far from clear that the erroneous jury instructions would be harmless,” id. at 32 5

– 29, 330

– 33. I ndeed, on remand, the government has made no6 argument that the instructional error was harmless

. See Doc. No. 520. V acatur of
Percoco’s conviction and sentence on Count Ten is therefore warranted. Accordingly , we AFFIRM Percoco’s convictions and sentences on Counts Nine and Eleven, VACATE Percoco’s conviction and sentence on Count Ten, and
REMAND to the district court f or further proceedings consistent with this opinion

. 2

2 This o pi nion address es only Percoco’s convictions. The judgments against Percoco’s co

defendants Louis Ciminelli, Steven Aiello, Joseph Gerardi, and Alain Kaloyeros have also been either reversed or vacated by the Supreme Court. See Ciminelli v. United States , 5 98 U.S. 306 (2023) (reversing Ciminelli’s judgment and remanding); Aiello v. United States , 143 S. Ct. 2491 (2023) (granting Aiello and Gerardi’s petitions for writ of certiorari, vacating their judgments, and remanding for further consideration in light o f the Supreme Court’s opinions in both Percoco and Ciminelli ); Kaloyeros v. United States , 143 S. Ct. 2490 (2023) (granting Kaloyeros’s petition for writ of certiorari, vacating his judgment, and remanding for further consideration in light of the Supreme Court’s opinion in Ciminelli ). As requested by Ciminelli, Aiello, Gerardi, and Kaloyeros, briefing is currently underway to determine how this Court should proceed in light of the Supreme Court’s opinion in Ciminelli

. See Doc. Nos. 496, 517. A s requested by Aiello, the Court will address the effect of the Supreme Court’s opinion in Percoco on Aiello’s conviction s when it addresses the effect of Ciminelli on those convictions

. See Doc. Nos. 524

– 25.