18-2990(L), 19-1272(Con) 

United States v. Percoco

United States Court of Appeals

For the Second Circuit

August Term 2019

Argued: March 12, 2020

Originally Decided: September 8, 2021 

Reversed and Remanded: May 11, 2023

Decided: September 5, 2023

Nos. 18-2990(L), 19-1272(Con)

UNITED STATES OF AMERICA, 

Appellee, 

v.

JOSEPH PERCOCO, STEVEN AIELLO, JOSEPH GERARDI, 

LOUIS CIMINELLI, ALAIN KALOYEROS, AKA DR. K,

Defendants-Appellants, 

PETER GALBRAITH KELLY, JR.,

MICHAEL LAIPPLE, KEVIN SCHULER, 

Defendants. 

Remand from the Supreme Court

of the United States, No. 21-1158. 
2

Before: RAGGI, CHIN, and SULLIVAN, Circuit Judges.

Defendant-Appellant Joseph Percoco appealed 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 

solicitation 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 convicted of honest-services fraud. The 

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), were clearly erroneous – and remanded for further 

proceedings. See Percoco v. United States, 598 U.S. 319 (2023). 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.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

MICHAEL L. YAEGER, Carlton Fields, P.A., 

New York, NY (Walter P. Loughlin, New 

York, NY, on the briefs), for Defendant-Appellant

Joseph Percoco.

MATTHEW D. PODOLSKY (Robert L. Boone, 

Janis M. Echenberg, Won S. Shin, on the brief), 

Assistant United States Attorneys, for Damian 

Williams, United States Attorney for the 

Southern District of New York, New York, 

NY, for Appellee.
3

PER CURIAM:

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 gratuities, in 

violation of 18 U.S.C. §§ 666(a)(1)(B) and 2 (Count Eleven). Before this Court, 

Percoco challenged (among other things) the district court’s instructions 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 the district court’s

instructions 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 appeal, 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. United 
4

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 granted 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 judgment 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 resentencing 

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, because our previous 

analysis of Counts Nine and Eleven is unaffected by the Supreme Court’s decision,

we affirm Percoco’s convictions and sentences on those counts 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–

201 (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 this 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 325–29, 330–33. Indeed, on remand, the government has made no 
6

argument that the instructional error was harmless. See Doc. No. 520. Vacatur 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 for further proceedings consistent with this 

opinion.2

2 This opinion addresses only Percoco’s convictions. The judgments against Percoco’s codefendants 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, 598 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 of 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. As requested by Aiello, the Court 

will address the effect of the Supreme Court’s opinion in Percoco on Aiello’s convictions when it 

addresses the effect of Ciminelli on those convictions. See Doc. Nos. 524–25.