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 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 …
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