18-2990 (L)
`United States v. Percoco
`
`
`
`
`United States Court of Appeals
`For the Second Circuit
`
`
`August Term 2019
`
`Argued: March 12, 2020
`Decided: September 8, 2021
`
`Nos. 18-2990, 18-3710, 19-1272
`
`
`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 SHULER,
`Defendants.*
`
`
`
`Appeal from the United States District Court
`for the Southern District of New York
`No. 16-cr-776, Valerie E. Caproni, Judge.
`
`
`
`
`
`
`
`
`* The Clerk of Court is respectfully directed to amend the case caption to conform with the caption
`above.
`
`
`
`

`

`Before: RAGGI, CHIN, AND SULLIVAN, Circuit Judges.
`Defendants-Appellants Joseph Percoco and Steven Aiello appeal from
`judgments of conviction entered in the United States District Court for the
`Southern District of New York (Caproni, J.), after a jury found Aiello guilty of one
`count of conspiracy to commit honest-services wire fraud and found Percoco
`guilty of two counts of conspiracy to commit honest-services wire fraud, as well
`as one count of solicitation of bribes and gratuities. On appeal, the defendants
`principally challenge the district court’s instruction that (1) the jury could convict
`them of conspiracy to commit honest-services fraud based on Percoco accepting
`payment to take official action to benefit the briber “as opportunities arise” and
`(2) the defendants could be liable for conspiracy to commit honest-services fraud
`for actions that Percoco agreed to undertake while he was not formally employed
`as a state official. Although the as-opportunities-arise instruction fell short of our
`recently clarified standard, which requires that the honest-services fraud involve
`a commitment to take official action on a particular matter or question, that error
`was harmless. The second contested instruction was not error at all. In so
`concluding, we reaffirm our decades-old decision holding that a person who is not
`technically employed by the government may nevertheless owe a fiduciary duty
`to the public if he dominates and controls governmental business, and is actually
`relied on by people in the government because of some special relationship.
`Finding no merit in the other arguments raised on appeal, we AFFIRM the
`judgment of the district court.
`
`Matthew D. Podolsky (Robert L. Boone, Janis M.
`Echenberg, Won S. Shin, on the brief), Assistant
`United States Attorneys, for Audrey Strauss,
`United States Attorney for the Southern District of
`New York, New York, NY, for Appellee United
`States of America.
`Michael L. Yaeger, Carlton Fields, P.A., New York,
`NY (Walter P. Loughlin, New York, NY, on the
`brief), for Defendant-Appellant Joseph Percoco.
`Alexandra A.E. Shapiro (Daniel J. O’Neill, and
`Fabien Thayamballi, on the brief), Shapiro Arato
`Bach LLP, New York, NY for Defendant-Appellant
`Steven Aiello.
`
`2
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`

`

`RICHARD J. SULLIVAN, CIRCUIT JUDGE:
`
`This case, which concerns public corruption in New York State, requires us
`
`to again consider the reach of the federal fraud and bribery statutes. Defendants-
`
`Appellants Joseph Percoco and Steven Aiello appeal from judgments of conviction
`
`entered in the United States District Court for the Southern District of New York
`
`(Caproni, J.), after a jury found Aiello guilty of conspiracy to commit honest-
`
`services wire fraud, in violation of 18 U.S.C. § 1349, and found Percoco guilty of
`
`both conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C.
`
`§ 1349, and solicitation of bribes or gratuities, in violation of 18 U.S.C.
`
`§§ 666(a)(1)(B) and 2.1
`
`On appeal, the defendants argue that the district court committed reversible
`
`error when it (1) instructed the jury that it could convict defendants of conspiracy
`
`to commit honest-services fraud based on Percoco accepting payment to take
`
`official action to benefit the briber “as opportunities ar[i]se”; (2) charged the jury
`
`that the defendants could be liable for conspiracy to commit honest-services fraud
`
`
`1 The district court held a second trial on separate, fraud-related counts in which Aiello, Alain
`Kaloyeros, Joseph Gerardi, and Louis Ciminelli were convicted on several conspiracy and
`substantive wire fraud counts, and Gerardi was convicted on a false statement count. Although
`the cases were consolidated upon appeal, the fraud trial is addressed in a separate opinion in
`United States v. Aiello, Nos. 18-3710-cr, 18-3712-cr, 18-3715-cr, and 18-3850-cr.
`
`3
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`

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`for actions Percoco took while he was not formally employed as a state official;
`
`(3) instructed the jury that Percoco could be liable under § 666 for soliciting,
`
`demanding, accepting, or agreeing to accept a gratuity as a reward for certain
`
`action; (4) constructively amended Aiello’s
`
`indictment by permitting his
`
`conviction to be based on acts Percoco committed while he was not a public
`
`official; (5) denied defendants’ motions for a judgment of acquittal based on the
`
`insufficiency of the evidence at trial; and (6) ordered forfeiture against Percoco in
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`the amount of $320,000. Finding none of these arguments persuasive, we
`
`AFFIRM.
`
`A. Facts
`
`I.
`
`BACKGROUND
`
`This case involves two schemes in which Percoco – a longtime friend and
`
`top aide to former Governor Andrew Cuomo – accepted payment in exchange for
`
`promising to use his position to perform official actions. For the first scheme,
`
`Percoco promised to further the interests of an energy company named
`
`Competitive Power Venture (“CPV”). For the second, Percoco agreed with Aiello
`
`to advance the interests of Aiello’s real estate development company, COR
`
`Development Company. Drawing from the evidence introduced at trial, we
`
`4
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`

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`briefly describe the facts of these schemes in the light most favorable to the
`
`government. See United States v. Silver, 948 F.3d 538, 546 n.1 (2d Cir. 2020), cert.
`
`denied, 141 S. Ct. 656 (2021).
`
`1. The CPV Scheme
`
`The CPV scheme started in 2012, when Percoco served as a high-level official
`
`in the Governor’s Office, also called the Executive Chamber. For all his political
`
`influence, Percoco found himself financially constrained. So he reached out to his
`
`friend Todd Howe, who was an influential and corrupt lobbyist. Percoco confided
`
`in Howe that money was tight, and he asked if any of Howe’s clients would hire
`
`Percoco’s wife. Sometime later, Howe approached Peter Galbraith Kelly, Jr.,
`
`whose energy company, CPV, was angling for a so-called “Power Purchase
`
`Agreement” that would have required New York State to purchase power from
`
`CPV.
`
`Percoco, Howe, and Kelly met over dinner to discuss an arrangement
`
`whereby Percoco would help CPV secure the Power Purchase Agreement in
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`exchange for securing employment for – and sending payments to – Percoco’s
`
`wife. Throughout the fall of 2012, Percoco pressured Howe to close the deal with
`
`Kelly so that Percoco could earn what he and Howe code-named “ziti” – a
`
`5
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`

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`reference to the term for payoffs featured in the mafia-themed television show
`
`“The Sopranos.” See Suppl. App’x at 1–3; App’x at 553. CPV later hired Percoco’s
`
`wife as an “education consultant” paying her $7,500 a month for a few hours of
`
`work each week. To conceal this arrangement, Kelly instructed his employees to
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`omit the last name of Percoco’s wife from CPV materials, and routed the payments
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`through a third-party contractor, whom Percoco referred to as Kelly’s “money
`
`guy.” Suppl. App’x at 212. Invoices from Kelly’s “money guy” likewise excluded
`
`any reference to Percoco’s wife.
`
`In exchange for these payments, Percoco agreed to help CPV obtain a Power
`
`Purchase Agreement from New York State. Later, while serving as Executive
`
`Deputy Secretary in Cuomo’s administration, Percoco confirmed in an email that
`
`he would “push on” the supervisor of New York’s state agencies, Howard Glaser,
`
`to discourage the state from awarding a Power Purchase Agreement to one of
`
`CPV’s competitors. Howe replied that Percoco had to “[h]old [Glaser’s] feet to the
`
`fire” to “keep the ziti flowing.” Id. at 30.
`
`Percoco also accepted continued payments to influence New York State
`
`officials to approve a so-called “Reciprocity Agreement” between New York and
`
`New Jersey, which was designed to allow CPV to build a power plant in New
`
`6
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`

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`Jersey by purchasing relatively inexpensive emission credits in New York. After
`
`an assistant commissioner in New York’s Department of Environmental
`
`Conservation (“DEC”) told Kelly that he would need a “push from above” to
`
`secure the agreement, id. at 8–10, Kelly, through Howe, reached out to Percoco for
`
`that push. In response, Percoco stated that he would contact the Commissioner of
`
`the DEC. When Howe followed up with Percoco about a week later, Percoco
`
`indicated that his mother was not well, and referred Howe to Glaser and another
`
`high-ranking official in Governor Cuomo’s administration who could contact the
`
`DEC Commissioner. Copying Percoco on the email, Howe forwarded the message
`
`to Glaser and the other official. Glaser and the other official then successfully
`
`directed the Commissioner to have the state agency enter into the Reciprocity
`
`Agreement with New Jersey.
`
`2. The COR Development Scheme
`
`The second scheme began while Percoco was temporarily managing
`
`Governor Cuomo’s reelection campaign in 2014. Pursuant to this scheme, Aiello
`
`arranged for his company, COR Development, to pay Percoco to take action to
`
`benefit the company. Initially, Aiello sought out Percoco’s assistance so that COR
`
`Development could avoid entering into a potentially costly agreement with a local
`
`7
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`union, known as a “Labor Peace Agreement,” prior to receiving state funding for
`
`a project. On July 30, 2014, Aiello emailed Howe asking whether “there is any way
`
`Joe P can help us” with the Labor Peace Agreement “while he is off the 2nd floor
`
`working on the Campaign.” App’x at 680. The next day, Aiello followed up with
`
`an email to Howe asking him to “call Joe P.” for “help” on the Labor Peace
`
`Agreement. Suppl. App’x at 59. Less than two weeks later, COR Development
`
`transferred $15,000 to an entity that Howe controlled, prompting Howe to cut a
`
`$15,000 check to Percoco’s wife. In October 2014, after several emails were
`
`exchanged but before Percoco had taken any action concerning the Labor Peace
`
`Agreement, COR Development sent an additional $20,000 to Percoco through the
`
`same circuitous route. Percoco received both payments after he had told his bank
`
`and several others that he intended to return to the Governor’s Office.
`
`After receiving payment, Percoco directed a state agency, Empire State
`
`Development (“ESD”), to reverse
`
`its previous decision requiring COR
`
`Development to enter into a Labor Peace Agreement. On December 3, 2014, Howe
`
`forwarded Percoco an email from Aiello’s partner, Joseph Gerardi, pressing Howe
`
`to have Percoco resolve the issue. Percoco responded that Howe should stand by;
`
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`

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`within an hour, Percoco called Andrew Kennedy, who oversaw ESD, and urged
`
`him to move forward without the Labor Peace Agreement.
`
`At that point, Percoco was a few days from formally returning to his
`
`position in the Governor’s Office and had already signed and submitted his
`
`reinstatement forms. In fact, Percoco’s swipe-card and telephone records revealed
`
`that he was at his desk in the Executive Chamber when he directed Kennedy to
`
`resolve the Labor Peace Agreement in COR Development’s favor. Kennedy
`
`testified that he interpreted Percoco’s call as “pressure” coming from one of his
`
`“principals,” who was a “senior staff member[],” and that he relayed this
`
`sentiment to another senior executive at the agency when encouraging that official
`
`to waive the required Labor Peace Agreement. App’x at 535. After his call with
`
`Kennedy, Percoco contacted Howe to confirm that the state agency would soon
`
`reach out to Gerardi “with a different perspective” on the need for a Labor Peace
`
`Agreement. Id. at 710 (internal quotation marks omitted). The following morning,
`
`the agency did as Percoco predicted.
`
`After he resumed his official role in Governor Cuomo’s administration,
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`Percoco pressured subordinate state officials to prioritize and release outstanding
`
`funds that the state owed COR Development. Percoco also ordered the Director
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`9
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`of Administrative Services for the Executive Chamber and employees of the Office
`
`of General Services to process a stalled pay raise for Aiello’s son, who at that time
`
`worked in the Executive Chamber. Recognizing Percoco’s role in procuring a raise
`
`for his son, Howe encouraged Aiello to send Percoco a thank-you note.
`
`B. Procedural History
`
`The federal government eventually caught wind of the schemes, and in
`
`November 2016, a grand jury indicted Percoco, Aeillo, Kelly, and Gerardi for their
`
`alleged roles in them. The operative indictment, a second superseding indictment
`
`filed in September 2017, charged eighteen counts, eleven of which concern the CPV
`
`and COR Development schemes relevant to this appeal. Count Six charged
`
`Percoco with conspiracy to commit extortion in connection with both schemes, in
`
`violation of 18 U.S.C. § 1951. Counts Seven and Eight charged Percoco with Hobbs
`
`Act extortion in connection with the CPV scheme and the COR Development
`
`scheme, in violation of 18 U.S.C. §§ 1951 and 2. Count Nine charged Percoco and
`
`Kelly with conspiracy to commit honest-services wire fraud during the CPV
`
`scheme, in violation of 18 U.S.C. § 1349. Count Ten charged Percoco, Aiello, and
`
`Gerardi with conspiracy to commit honest-services wire fraud tied to the COR
`
`Development scheme, in violation of 18 U.S.C. § 1349. Counts Eleven and Twelve
`
`10
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`charged Percoco with solicitation of bribes and gratuities for his efforts in the CPV
`
`scheme and the COR Development scheme, respectively, in violation of 18 U.S.C.
`
`§§ 666(a)(1)(B) and 2. Count Thirteen charged Kelly with payment of bribes and
`
`gratuities as part of the CPV scheme, in violation of 18 U.S.C. §§ 666(a)(2) and 2,
`
`while Count Fourteen charged Aiello and Gerardi with violating the same law by
`
`paying bribes and gratuities for the COR Development scheme. Finally, Counts
`
`Seventeen and Eighteen charged that Aiello and Gerardi, respectively, violated 18
`
`U.S.C. § 1001(a)(2) by making false statements to federal officers during the
`
`investigation into the COR Development scheme.
`
`Percoco, Aiello, Gerardi, and Kelly proceeded to a jury trial, which lasted
`
`from January 22, 2018 until March 13, 2018. After the government rested, the trial
`
`defendants each moved for a judgment of acquittal pursuant to Rule 29 of the
`
`Federal Rules of Criminal Procedure. The district court reserved decision,
`
`ultimately denying the motions in an opinion issued after trial. Prior to charging
`
`the jury, however, the district court dismissed the Count Eight extortion charge,
`
`reasoning in a later-issued opinion that, as a matter of law, Percoco could not have
`
`committed Hobbs Act extortion under color of official right, because he did not
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`11
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`have an official position in the administration when he received bribe payments
`
`tied to the COR Development scheme.
`
`After dismissing the extortion count, the district court instructed the jury.
`
`In relevant part, the court stated that to convict the defendants of conspiracy to
`
`commit honest-services wire fraud (Counts Nine and Ten) and soliciting or
`
`accepting a bribe (Count Eleven), the jury was required to find the existence of a
`
`quid pro quo, meaning that a payment was made or solicited or accepted with the
`
`intent that “the payment or benefit . . . be in exchange for official actions.” App’x
`
`at 655–57; see also id. at 652–53. Though the court instructed that “[a]n official act
`
`or official action is a decision or action on a specific matter that may be pending or
`
`may by law be brought before a public official,” the court also stated that the quid-
`
`pro-quo element would be satisfied if Percoco wrongfully “obtained . . . property
`
`. . . in exchange [for] official acts as the opportunities arose.” Id. at 652–53.
`
`In addition, the district court instructed the jury about Percoco’s fiduciary
`
`duty for the purposes of Counts Nine and Ten, stating that “[a] person does not
`
`need to have a formal employment relationship with the state in order to owe a
`
`duty of . . . honest services to the public.” Id. at 655. According to the district
`
`court’s instruction, the jury could find that Percoco “owed the public a duty of
`
`12
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`

`

`honest services when he was not a state employee if” (1) “he dominated and
`
`controlled any governmental business” and (2) “people working in the
`
`government actually relied on him because of a special relationship he had with
`
`the government.” Id. at 655.
`
`The jury ultimately found Percoco and Aiello guilty of conspiracy to commit
`
`honest-services wire fraud linked to the COR Development scheme (Count Ten).
`
`The jury also returned a guilty verdict against Percoco for conspiring to commit
`
`wire fraud related to the CPV scheme (Count Nine) and for soliciting bribes or
`
`gratuities during the CPV scheme (Count Eleven). The jury acquitted Percoco,
`
`Aiello, and Gerardi on the remaining counts, and deadlocked on the charges
`
`against Kelly, who later pleaded guilty to one count of conspiracy to commit wire
`
`fraud in connection with the CPV scheme.
`
`The district court sentenced Percoco to a term of 72 months’ imprisonment,
`
`to be followed by three years’ supervised release; imposed a $300 mandatory
`
`special assessment; and ordered Percoco to forfeit funds in an amount later
`
`determined to be $320,000. The district court sentenced Aiello, who was also
`
`convicted on all relevant counts during a separate trial for fraud, to a term of 36
`
`months’ imprisonment, to be followed by two years’ supervised release; imposed
`
`13
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`a $500,000 fine, along with a $300 mandatory special assessment; and ordered
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`Aiello to forfeit funds in an amount later determined to be $898,954.20.
`
`Percoco and Aiello timely appealed. They now challenge three of the
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`district court’s jury instructions, along with the sufficiency of the evidence
`
`supporting their convictions; assert that the government improperly amended the
`
`indictment by relying on acts Percoco committed when he was not a public official;
`
`and contend that the district court erred when it ordered Percoco to forfeit
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`$320,000.
`
`II. STANDARD OF REVIEW
`
`We review de novo challenges to the district court’s jury instructions, as well
`
`as claims of constructive amendment to, or prejudicial variance from, the
`
`indictment. United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015); United States v.
`
`Dove, 884 F.3d 138, 146, 149 (2d Cir. 2018). We also review de novo the sufficiency
`
`of the evidence, United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010),
`
`recognizing, of course, that a defendant raising such a challenge “bears a heavy
`
`burden because a reviewing court must consider the evidence ‘in the light most
`
`favorable to the prosecution’ and uphold the conviction if ‘any rational trier of fact
`
`could have found the essential elements of the crime beyond a reasonable doubt,’”
`
`14
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`United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009) (quoting Jackson v. Virginia,
`
`443 U.S. 307, 319 (1979)); see also United States v. Harvey, 746 F.3d 87, 89 (2d Cir.
`
`2014). Finally, when a defendant objects to his forfeiture order in the district court,
`
`we review the district court’s finding of facts with respect to forfeiture for clear
`
`error and its legal conclusions de novo. See Sabhnani, 599 F.3d at 261.
`
`III. DISCUSSION
`
`A. The “As Opportunities Arise” Jury Instruction
`
`The defendants first argue that the district court committed reversible error
`
`by instructing the jury that it could convict the defendants of conspiracy to commit
`
`honest-services fraud if Percoco had accepted a bribe to take official actions to
`
`benefit the payors “as opportunities arose.” The government concedes that, in
`
`light of the Second Circuit’s intervening decision in United States v. Silver, the
`
`district court’s bribery instructions were erroneous; it contends, however, that the
`
`error here was harmless. We agree with the parties that the district court’s
`
`instruction falls short of the legal standard as clarified by Silver, but conclude that
`
`the error was harmless.
`
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`1. The “As Opportunities Arise” Instructions Were Erroneous.
`
`Federal law criminalizes the use of wire communications to effectuate a
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`“scheme or artifice to defraud.” 18 U.S.C. § 1343. Among the frauds covered by
`
`the wire fraud statute are schemes “to deprive another of the intangible right of
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`honest services.” Id. § 1346. When a public official commits “honest services”
`
`fraud, he may be held liable on the “theory that a public official acts as trustee for
`
`the citizens and the State and thus owes the normal fiduciary duties of a trustee,
`
`e.g., honesty and loyalty to them.” See Silver, 948 F.3d at 551 (quoting United States
`
`v. Silvano, 812 F.2d 754, 759 (1st Cir. 1987)). Honest-services fraud is carefully
`
`circumscribed, however, and only criminalizes bribes and kickbacks. Skilling v.
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`United States, 561 U.S. 358, 409 (2010).
`
`Here, the parties stipulated before the district court that “bribery” for the
`
`purposes of the honest-services fraud statute is defined by reference to 18 U.S.C.
`
`§ 201, which makes it a crime for “a public official” to “corruptly demand[], seek[],
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`receive[], accept[], or agree[] to receive or accept anything of value . . . in return for
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`. . . being influenced in the performance of any official act.” 18 U.S.C.
`
`§ 201(b)(2)(A); see United States v. Percoco, No. 16-cr-776 (VEC), 2019 WL 493962,
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`at *5 n.12 (S.D.N.Y. Feb. 8, 2019) (noting parties’ agreement to charge jury that the
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`“official act” requirement applies); accord McDonnell v. United States, 136 S. Ct.
`
`2355, 2365 (2016) (“The parties agreed that they would define honest services fraud
`
`with reference to the federal bribery statute, 18 U.S.C. § 201.”). To prove bribery
`
`under § 201, the government must establish a quid pro quo, proving that Percoco
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`“committed (or agreed to commit) an ‘official act’ in exchange for” some benefit.
`
`McDonnell, 136 S. Ct. at 2361.
`
`Although our Court in United States v. Ganim held that that the government
`
`can satisfy the quid pro quo requirement merely by showing that a government
`
`official promised to act for the bribing party’s benefit “as the opportunities
`
`arise,” 510 F.3d 134, 142 (2d Cir. 2007), we recently clarified the limits of this theory
`
`in light of the Supreme Court’s decision in McDonnell v. United States. See generally
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`Silver, 948 F.3d at 550–58; United States v. Skelos, 988 F.3d 645, 655–56 (2d Cir. 2021).
`
`In McDonnell, the Supreme Court considered the meaning of the phrase “official
`
`act” for the purposes of 18 U.S.C. § 201, and determined that the term referred to
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`“something specific and focused that is ‘pending’ or ‘may by law be brought
`
`before any public official.’” 136 S. Ct. at 2374 (quoting 18 U.S.C. § 201(a)(3)). It
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`further held that an official act must be “something that is relatively circumscribed
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`– the kind of thing that can be put on an agenda, tracked for progress, and then
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`checked off as complete.” Id. at 2369.
`
`In Silver, we considered the impact of McDonnell on the “as opportunities
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`arise” theory of honest-services fraud. As an initial matter, we rejected the
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`argument that McDonnell “eliminated” this theory of bribery. Silver, 948 F.3d
`
`at 552. But while we held that McDonnell does not “require[] identification of a
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`particular act of influence,” we also concluded that McDonnell does “require[]
`
`identification of a particular question or matter to be influenced.” Id. That is to say,
`
`the promisor must at least commit “to take official action on a particular question or
`
`matter as the opportunity to influence that same question or matter arises.” Id.
`
`at 552–53. So the offered “quo” must have “enough definition and focus to be
`
`properly understood as promising, in return for some quid, the formal exercise of
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`governmental power.” Id. at 557–58.
`
`Applying this standard in Silver, we found that the district court improperly
`
`instructed the jury that the defendants need only have “expected to exercise
`
`official influence or take official action for the benefit of the payor.” Id. at 568. That
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`“open-ended” charge “failed to convey that [the defendant] could not be convicted
`
`of honest services fraud unless the [g]overnment proved that, at the time the bribe
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`was accepted, [he] promised to take official action on a specific and focused question
`
`or matter as the opportunities to take such action arose.” Id. at 569. We reached
`
`the same conclusion in United States v. Skelos, which applied Silver to a jury
`
`instruction predicating liability on the defendant’s agreement to “perform official
`
`acts in exchange for . . . property.” 988 F.3d at 656. That instruction likewise
`
`impermissibly “left open the possibility that the jury could convict even if [the
`
`defendant] was expected to take official action on any question or matter in return
`
`for the payment.” Id.
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`The district court here instructed the jury that the quid-pro-quo element was
`
`satisfied if “Percoco obtained . . . property to which he was not entitled by his
`
`public office, knowing that it was given in exchange [for] official acts as the
`
`opportunities arose.” App’x at 653. As in Silver and Skelos, which were decided
`
`after conclusion of the trial in this matter, the jury instruction here was “too open-
`
`ended” because it failed to convey that the defendants could not be convicted of
`
`honest-services fraud unless they promised to undertake official action on a
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`specific question or matter as the opportunities arose. Silver, 948 F.3d at 569; see
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`also Skelos, 988 F.3d at 656.2
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`2 Percoco contends that the “as opportunities arise” error “infected the instructions for every
`count of conviction in Percoco’s case, including § 666,” because “[a]ll counts and their instructions
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`2. The Erroneous Bribery Instructions Were Harmless.
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`But the mere fact that the district court’s jury charge was erroneous does not
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`end the inquiry. Having found the bribery instructions deficient, we must now
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`consider whether that error is harmless. It is well-settled that “we will not reverse
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`a conviction if the government can show harmlessness, i.e., show that it is clear
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`beyond a reasonable doubt that a rational jury would have found the defendant
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`guilty absent the error.” United States v. Ng Lap Seng, 934 F.3d 110, 129 (2d Cir.
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`2019) (internal quotation marks omitted); see also Fed. R. Crim. P. 52(a). To
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`conclude that the faulty jury instructions were harmless, “we must be convinced
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`that a rational jury would have found that [the defendants] entered into the alleged
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`quid pro quos understanding that [Percoco] was expected to influence ‘specific,’
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`‘focused, and concrete’ questions or matters.” Silver, 948 F.3d at 569; see also United
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`States v. Bah, 574 F.3d 106, 114 (2d Cir. 2009). Of course, “[c]ircumstantial evidence
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`demonstrating an understanding between the payor and the official will often be
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`sufficient for the [g]overnment to identify a properly focused and concrete
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`alleged Percoco agreed to take ‘official action’ ‘as opportunities arose.’” Percoco Suppl. Br. at 1.
`But as we have repeatedly explained, “McDonnell’s ‘official act’ standard for the quo component
`of bribery as proscribed by § 201 does not apply to the ‘more expansive’ language of § 666.”
`United States v. Ng Lap Seng, 934 F.3d 110, 133 (2d Cir. 2019) (quoting United States v. Boyland, 862
`F.3d 279, 291 (2d Cir. 2017)), cert. denied, 141 S. Ct. 161 (2020). Accordingly, Percoco’s passing
`commentary about his § 666 conviction misses the mark.
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`question or matter.” Skelos, 988 F.3d at 656–57 (first alteration in original) (quoting
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`Silver, 948 F.3d at 557). We first address Percoco’s conviction for conspiracy to
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`commit honest-services fraud related to the CPV scheme (Count Nine), before
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`turning to both defendants’ conviction for conspiracy to commit honest-services
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`fraud connected to the COR Development scheme (Count Ten).
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`a. The CPV Scheme
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`The evidence presented at trial overwhelmingly showed that, from the
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`beginning of the CPV scheme, Percoco and his co-conspirators understood that the
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`payments made to Percoco’s wife were in exchange for action on the Power
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`Purchase Agreement. Recall that Percoco approached Howe because he needed
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`an influx of cash, and Howe, playing the role of matchmaker, connected Percoco
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`to Kelly because CPV needed assistance to secure the Power Purchase Agreement.
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`Howe testified that the plan was solidified during a 2012 dinner in Danbury,
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`Connecticut – and even Percoco concedes that the Power Purchase Agreement was
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`discussed over dinner. The evidence further reflects that Percoco pressured Howe
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`to seal the deal with Kelly so that Percoco could get his “ziti.” And only after CPV
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`began paying Percoco’s wife for her low-show job did Percoco exert his influence
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`to secure the Power Purchase Agreement for CPV. See United States v. Biaggi, 909
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`F.2d 662, 684 (2d Cir. 1990) (“[E]vidence of the receipt of benefits followed by
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`favorable treatment may suffice to establish circumstantially that the benefits were
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`received for the purpose of being influenced in the future performance of official
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`duties, thereby satisfying the quid pro quo element of bribery.”). Howe’s
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`testimony, the email evidence, and the timing of the payments expel any doubt:
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`From the get-go, Percoco agreed to act on the Power Purchase Agreement – a
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`“specific” and “focused” matter as required by McDonnell and Silver.
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`We also consider the other specific matter involved in the CPV scheme – the
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`Reciprocity Agreement. The government’s theory at trial was that, in exchange
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`for continued monthly payments for his wife’s low-show job, Percoco agreed to
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`undertake official action on the Reciprocity Agreement – all to keep the “ziti”
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`flowing. Percoco contends that the Reciprocity Agreement cannot be the basis for
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`his Count Nine conviction, because the jury could at most find that he promised
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`to act on the Reciprocity Agreement a year after the CPV conspiracy was hatched.
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`But our caselaw does not support this argument.
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`As far as timing goes, our caselaw requires that “a particular question or
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`matter must be identified at the time the official makes a promise or accepts a
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`payment.” Silver, 948 F.3d at 558 (emphasis omitted). This rule hardly precludes
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`a conviction based on an official’s follow-on agreements – after an initial deal is
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`reached – to take additional action in exchange for additional money. It would be
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`strange indeed to hold that an original deal between an official and payor
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`somehow froze their agreement in time, excluding the possibility that an official
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`could later commit to take more acts in order to maintain a revenue stream.
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`Rather, it is enough that the parties identified the “particular question or matter
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`. . . at the time” that they agreed to the official action that would be taken in
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`exchange for additional money. See id.
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`Nothing in Silver is to the contrary. In fact, Silver explicitly limited its
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`holding to the “‘as the opportunities arise’ theory as set forth in Ganim.” Id. at 553
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`n.7. There, we were presented with an unfettered “as opportunities arise” theory,
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`which would have permitted a conviction based on a promise “to take – as the
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`opportunities arise – ‘any decision or action on any question, matter, cause, suit,
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`proceeding or controversy [that] may at any time be pending.’” Id. at 556
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`(alteration in original) (quoting 18 U.S.C. § 201(a)(3)). In Silver, we recognized that
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`such a promise was “so vague as to be meaningless,” leaving the illusory
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`agreement without any definable quo. Id. at 556–57.
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`23
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`Here, the evidence demonstrated a clear quid pro quo on a new, specific
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`matter for additional money in the form of continued monthly payments.