80 F.4th 393
2d Cir.2023Background
- Joseph Percoco was convicted in SDNY 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).
- On direct appeal the Second Circuit affirmed those convictions, relying in part on United States v. Margiotta for jury instructions that could reach conduct by persons not formally in public office.
- The Supreme Court granted certiorari, held that Margiotta-based jury instructions given in Percoco were clearly erroneous, and remanded for further proceedings.
- On remand the parties jointly asked the Second Circuit to vacate Count Ten, affirm Counts Nine and Eleven, and remand so the government could dismiss Count Ten and the district court could amend the judgment.
- The Second Circuit, applying the Supreme Court's decision, affirmed Counts Nine and Eleven (for reasons in its prior opinion), vacated Count Ten, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a private citizen with informal political influence can be convicted of honest-services fraud | Gov: Margiotta permitted conviction in these circumstances and the jury instructions were proper | Percoco: A private citizen outside public employment cannot (or should not be convicted under the Margiotta instruction) | SCOTUS: private citizens can in some circumstances be guilty, but the Margiotta-based instructions in this trial were erroneous; vacatur of Count Ten warranted |
| Validity of the Margiotta-based "as opportunities arise" jury instruction when applied to non-officeholders | Gov: Instruction fit within Margiotta and was appropriate | Percoco: Instruction was erroneous and could mislead jury about scope of honest-services theory | Court: SCOTUS found the Margiotta instructions erroneous; Second Circuit vacated Count Ten accordingly |
| Whether the instructional error as to Count Ten was harmless | Gov: on remand did not argue harmlessness | Percoco: argued error required reversal | Court: Because SCOTUS said harmlessness was far from clear and government did not argue harmlessness, vacatur of Count Ten is required |
| Effect of vacating Count Ten on Counts Nine and Eleven and sentencing | Gov & Percoco (on remand): affirm Counts Nine and Eleven; no resentencing for those counts; dismiss Count Ten | Percoco initially argued spillover prejudice but abandoned that claim on remand | Court: Affirmed Counts Nine and Eleven, vacated Count Ten, remanded for further proceedings; left sentences on Nine and Eleven intact per parties' joint request |
Key Cases Cited
- United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982) (foundation for honest-services jury instruction challenged in Percoco)
- United States v. Percoco, 13 F.4th 180 (2d Cir. 2021) (Second Circuit's original opinion affirming convictions)
- Percoco v. United States, 598 U.S. 319 (2023) (Supreme Court reversing on instructional error and clarifying limits of Margiotta)
- Ciminelli v. United States, 598 U.S. 306 (2023) (Supreme Court decision affecting related convictions and remands)
- Escalera v. Coombe, 852 F.2d 45 (2d Cir. 1988) (procedure limiting reconsideration on remand to scope of Supreme Court's decision)