In United States v. Percoco, the Second Circuit (Raggi, Chin, Sullivan)[1] the Second Circuit affirmed the convictions of several defendants involved in the so-called “Buffalo Billion” scandal. The charged crimes included three distinct schemes. One involved bid rigging by a lobbyist, his clients, and an individual with sway over awarding contracts under the project. The other two involved a former aide to Governor Andrew Cuomo, Joseph Percoco, who was charged with helping two companies achieve their business goals by using his influence over state officials. While the allegations are redolent of public corruption in New York State government, these schemes do not comfortably sit within the traditional purview of federal wire, mail, and honest services fraud. In two separate, lengthy opinions, the Circuit upheld the convictions in their entirety, stretching the federal fraud statutes to their limits in order to affirm. Although there is nothing more destructive to a democracy than the public’s loss of faith in its elected officials’ willingness to put the public good over private interests, we express some concerns about the approach taken by the Court in these decisions.

Background

In 2012, then-Governor Andrew Cuomo announced a plan by the state of New York to invest $1 billion to develop the greater Buffalo, New York area—commonly referred to as the “Buffalo Billion” project. The goal of the project was to generate jobs and stimulate the economy of Upstate New York. This case stems from scheme to favor certain contractors bidding on various aspects of the Buffalo Billion project. The scheme involved several participants:

• Todd Howe: A consultant and lobbyist with a longstanding relationship with the Cuomo administration
• Joseph Percoco: Former Executive Deputy Secretary to former Governor Andrew Cuomo and also a close friend of both Cuomo and his father, former Governor Mario Cuomo[2]
• Alain Kaloyeros: Former head of the College of Nanoscale Science and Engineering (“CNSE”), an economic development and research organization that is part of the University of Albany and SUNY system
• Steven Aiello: Co-head of COR Development Company (along with Gerardi)
• Joseph Gerardi: Co-head of COR Development Company (along with Aiello)
• Louis Ciminelli: Head of LPCiminelli
• Peter Kelly: Head of CPV

The Bid Rigging Scheme

According to the government’s allegations and the Second Circuit’s rendition of the trial evidence, in late 2011, CNSE head Kaloyeros hired lobbyist Howe to help lobby the Cuomo administration, ultimately leading to Kaloyeros being selected to oversee development projects under the Buffalo Billion project. In exchange Kaloyeros arranged for the SUNY Research Foundation pay Howe $25,000 per month.

In his new role, Kaloyeros was in charge of proposing and developing projects under the Buffalo Billion campaign. To circumvent a prohibition on state agencies engaging in business ventures with private companies, Kaloyeros partnered with a private entity called Fort Schuyler Management Corporation (“Schuyler”), which purchased land and facilities for the Buffalo Billion project. Kaloyeros was a member of Schuyler’s board of directors.

Starting in the summer of 2013, Kaloyeros and Howe started working together to steer Buffalo Billion contracts to Howe’s other clients. To do so, they had to circumvent Schuyler, which had the final decision on awarding contracts. In August 2013, Kaloyeros convinced Schuyler to solicit “preferred developers” for Buffalo and Syracuse. The preferred developer would have the first opportunity to negotiate with Schuyler for contracts under the Buffalo Billion project. Kaloyeros and Howe drafted the solicitations for preferred developers and included requirements that Howe’s clients could satisfy and that other bidders could not. During the bidding process, Kaloyeros communicated with Howe and his clients to provide insights into Schuyler’s selection process. As a result, two of Howe’s clients—Cor Development and LPCiminelli—were selected as the preferred developers for Syracuse and Buffalo, respectively. Schuyler subsequently awarded $105 million in contracts to Cor Development and a $750 million contract to LPCiminelli.

The CPV Scheme

In 2012, Percoco—who was then a high-ranking official in the Governor’s office—contacted Howe and the two devised a scheme to enrich Percoco and benefit one of Howe’s clients, a company called CPV. Howe, Percoco, and Peter Kelly (head of CPV) reached an arrangement whereby CPV would hire Percoco’s wife with a salary of $7,500 per month for a few hours of work each week, and in exchange, Percoco would use his influence to help CPV win a contract to supply power to the state government, known as the Power Purchase Agreement. Percoco used his influence with state officials to steer the Power Purchase Agreement away from one of CPV’s competitors and to help CPV secure another agreement to build a power plant in New Jersey.

The COR Development Scheme

In 2014, Percoco left the Governor’s Office to join Cuomo’s reelection campaign. Aiello, co-head of COR Development, agreed to pay Percoco $55,000 in exchange for assisting COR Development avoid entering into a costly agreement known as the “Labor Peace Agreement.” Percoco then used his influence to persuade a state agency (Empire State Development) to reverse its decision requiring COR Development to enter into the Labor Peace Agreement.

District Court Proceedings

In September 2017, a grand jury returned a superseding indictment charging eighteen counts related to the Buffalo Billion scandal:

• In connection with the Bid Rigging Scheme, Kaloyeros, Aiello, Gerardi, and Ciminelli were each charged with wire fraud and conspiracy to commit wire fraud.
• In connection with the CPV Scheme, Percoco was charged with conspiracy to commit extortion, Hobbs Act extortion, conspiracy to commit honest services wire fraud (along with Kelly), and solicitation of bribes and gratuities (and Kelly for paying bribes and gratuities).
• In connection with the COR Development Scheme, Percoco was charged with conspiracy to commit extortion, Hobbs Act extortion, conspiracy to commit honest services wire fraud (along with Aiello and Gerardi), and solicitation of bribes and gratuities (and Aiello and Gerardo for paying bribes and gratuities).

The District Court bifurcated the charges into two trials: one concerning the Bid Rigging Scheme, and one concerning the CPV Scheme and the COR Development Scheme. One jury found Percoco and Aiello guilty of conspiracy to commit honest-services wire fraud linked to the COR Development scheme. The jury also returned a guilty verdict against Percoco for conspiring to commit wire fraud related to the CPV scheme and for soliciting bribes or gratuities during the CPV scheme. With respect to the Bid Rigging Scheme, a jury returned a guilty verdict on all counts.

The Circuit’s Decision

On appeal, the defendants challenged their convictions on several grounds. The two trials led to two separate appeals, which were decided in two separate opinions issued by the same panel. The Court affirmed on all counts.

The Bid Rigging Scheme

“Right to Control” Doctrine

Aiello, Gerardi, Ciminelli, and Kaloyeros raised challenges pertaining to the so-called “right to control” theory of federal wire fraud, under which they were convicted. By way of background, the federal fraud statues do not criminalize every possible deceptive scheme. The statute applies only to fraudulent schemes aimed at “obtaining money or property” of the victim. Because of this limitation, many unethical or deceptive schemes fall outside the purview of the federal fraud statutes. For example, falsely telling someone that you are a movie star to induce them to go on a date would be unethical, but it would not be a federal crime so far as the scheme was not aimed at obtaining the victim’s money or property. The “right to control” doctrine bends this limitation, and in doing so, significantly expands the scope of federal fraud crimes. Under the doctrine, a scheme can violate the federal fraud statutes even if it does not aim to obtain the victim’s money or property, so long as it deprived the victim of “potentially valuable economic information” concerning the victim’s control of their money or property.

In one recent example, United States v. Gatto, the Second Circuit affirmed a fraud conviction in which the defendant—an employee of athletic apparel company Adidas—made payments to the parents of talented student athletes in hopes of enticing them to attend colleges with an existing relationship with Adidas. The scheme violated the National Collegiate Athletic Association’s (“NCAA”) amateurism rules, but notably, the defendant did not obtain any money or property from the purported “victims” of the fraud: the universities. Instead, the government contended that the universities had a “right to control” their money spent on athletic programs and that the scheme interfered with that right.

The “right to control” doctrine has been controversial. Other federal appeals courts have rejected it as inconsistent with the text of the federal fraud statutes. See, e.g., United States v. Walters, 997 F.2d 1219 (7th Cir. 1993). The Supreme Court has never weighed in on the validity of the doctrine, although there is a pending petition for certiorari in Gatto asking the Supreme Court to resolve the circuit split.

The defendants in this case first argued that the “right to control” doctrine is categorically invalid because it criminalizes schemes that do not seek to obtain money or property within the meaning of the wire fraud statute. The Court declined to address this issue except to note that Circuit precedent, such as United States v. Finazzo, 850 F .3d 94 (2d Cir. 2017), upheld the “right to control” doctrine and the Court could not question a precedential decision of a prior panel. It appears the defendants recognized the Court’s constraint and raised the issue merely to preserve it for an appeal to the United States Supreme Court.

The defendants next argued that—even under the “right to control” doctrine, the evidence was insufficient to support their convictions. Under Second Circuit precedent, a “right to control” fraud must involve misrepresentations or omissions that “can or do result in tangible economic harm.” Even under the “right to control” doctrine, the misrepresentation or omissions still must have “affected the victim’s economic calculus or the benefits and burdens of the agreement,” “pertained to the quality of services bargained for,” or “exposed the victim to unexpected economic risk.” Here, the Court held that the “tangible economic harm” prong was satisfied because the bid rigging scheme reduced the possibility that competing contractors would be seen as viable alternatives to Cor Development and LPCiminelli, and thereby deprived Schuyler of the right to select a contractor through a fair and objective bidding process. This was sufficient to sustain the conviction even though Schuyler independently negotiated the individual project contracts with Cor Development and LPCiminelli and even though the government never proved that there was an alternative contractor Schuyler could have selected that would have been a better value.

On this point the Court conceded “that many of our right-to-control precedents have involved more tangible evidence of economic harm than is presented in this case.” Still, it noted that the victim need not suffer actual economic harm, and under the “right to control” doctrine, the government need not prove that another contractor could have “either charged less or produced a more valuable product absent the fraud.” These comments demonstrate the reach of the wire fraud statute when enhanced by the “right to control” doctrine to include circumstances in which no one could have been or was deprived of property.

The CPV and Cor Development Schemes

With respect to these schemes, the defendants were changed with “honest services” fraud, which prohibits schemes “to deprive another of the intangible right of honest services.” Honest services fraud is a species of property fraud that is premised on the principle that public official acts as trustee for the citizens and the State and thus has a duty of honesty and loyalty to them. The Supreme Court struck down this theory in McNally v. United States, 483 U.S. 350 (1987), and in response Congress enacted 18 U.S.C. § 1346, which defined “scheme or artifice to defraud” to include honest services fraud. While this principle is stated in extremely broad terms, the Supreme Court after McNally has limited honest services fraud to instances of bribery and kickbacks. Here, the government pursued a bribery theory. The defendants principally raised two arguments: (1) that the trial court improperly instructed the jury about the “official act” element of the offense, and (2) that Percoco was not a public official at the time of some of the charged fraudulent acts.

Official Act — “As Opportunities Arise”

The government alleged that Percoco accepted bribes in exchange for using his influence in the Governor’s office to benefit the other defendants’ businesses. The hallmark of this type of charge is a “quid pro quo,” meaning that the defendant agreed to engage in an “official act” in exchange for some benefit. The “benefits” here were a lucrative job for Percoco’s wife as well as direct cash payments. The “official act,” however, is a slightly more complicated issue. The trial judge instructed that jury that the bribery scheme need not involve a specific “official act,” but rather could simply be an agreement that Percoco would use his position to help out CPV and Cor Development “as opportunities arise.” This was standard adopted by the Second Circuit in United States v. Ganim, 510 F.3d 134 (2d Cir. 2007), but subsequent Supreme Court decisions held that the “official act” could not be the nebulous promise of future help but rather had to be “something specific and focused that is pending or may by law be brought before any public official.” McDonnell v. United States, 136 S. Ct. 2355, 2372 (2016). In other words, the official act has to be “the kind of thing that can be put on an agenda.” Id. at 2369.

The Court recognized that the trial judge’s instruction was erroneous because it recited the older standard regarding an official act. Nevertheless, the Court found the error to be harmless because the evidence was overwhelming that the bribes in question concerned specific official acts—namely steering the Power Purchase Agreement to CPV and exempting Cor Development from entering into the Labor Peace Agreement.

Fiduciary Duty

The defendants also argued that the trial judge erred in instructing the jury that they could convict the defendants based on acts Percoco committed in 2014, when he was not a public official but rather a private citizen employed by Andrew Cuomo’s re-election campaign. The district court instructed the jury that they could convict based Percoco’s actions as a private citizen so long as “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.” The Court found no error in these instructions. It relied on United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), in which the Second Circuit held that a defendant does not need a formal employment relationship to be a “public official” for purposes of honest services fraud. It is enough that a defendant “dominate” a government function to trigger a fiduciary duty to the public. The Court further rejected an argument that subsequent decisions altered the outcome. Although Margiotta was overruled by McNally, has been criticized by other courts, and preceded enactment of the honest services fraud statute, the Court still found it pertinent to its decision and further found no reason to exempt from the statute those who control government functions without being formally employed by the state.

Analysis

The Court’s decisions are consistent with its march towards an ever-increasing scope of the federal fraud statutes. Prosecutors in the Second Circuit have continually pushed the boundaries of the statutes—blurring the line between basic state corruption offenses and federal fraud crimes. This case nicely exemplifies the lengths to which prosecutors (with the Court’s blessing) have gone to expand the plain meaning of the fraud statutes in order to affirm fraud convictions.

Right-to-Control Doctrine

Perhaps the most interesting issue in the case is one the Court spent little time addressing—as it was constrained by Circuit precedent. While there is no question that the defendants charged in the Bid Rigging Scheme (Kaloyeros, Aiello, Gerardi, and Ciminelli) acted inappropriately and in a way that conforms to the worst public perception of corruption in New York State politics, their convictions for federal wire fraud still raise serious questions. After all, Kaloyeros did not take any money or property from New York state. According to the government, the benefit he obtained was Howe’s assistance in separating CNSE from the University of Albany and becoming president of the newly independent university. Nor was there any evidence that the government received a bad deal when it awarded contracts to Cor Development and LPCiminelli. The government never suggested that those companies failed to perform the contracts they negotiated with Schuyler, nor that the defendants interfered in those negotiations. Only by relying on the “right to control” doctrine was the government able to obtain convictions against these defendants.

It is difficult to square the Second Circuit’s expansive “right to control” doctrine with Supreme Court precedent. Since McNally, the Supreme Court has repeatedly held that the federal mail and wire fraud statues are implicated only where the defendant’s scheme is aimed at obtaining money or property. For example, in Cleveland v. United States, 531 U.S. 12 (2000), the Supreme Court considered a defendant who submitted false applications for government licenses. The government argued that the defendant had deprived the government of the “right to control” the issuance of licenses. The Supreme Court unanimously reversed the conviction, holding that “the right to control the issuance of licenses” is a regulatory power, not property that could be obtained by the defendant. More recently in, Kelly v. United States, 140 S. Ct. 1565, the Supreme Court overturned the convictions of defendants who were involved in a scheme to realign the lanes of the George Washington Bridge as retribution to political enemies of then-New Jersey governor Chris Christie. The Supreme Court held that the Port Authority’s right to control the “time and labor of its employees” was not “property” that the defendants obtained. At heart, the principle was perhaps best articulated in Skilling v. United States, 561 U.S. 358 (2010), where the Supreme Court said that “the victim’s loss of money or property” and the defendants’ gain of such property must be “the mirror image of the other.” In other words, the property lost by the victim must be the same property obtained by the defendant (or a co-conspirator of the defendant).

Turning back to the facts of this case, it is difficult to fit the round peg of the Bid Rigging Scheme into the square hole of federal wire fraud. The government contended that the defendants deprived the State of New York (through Schuyler) “of the right to select a contractor through a fair and objective bidding process.” Initially, this theory seems to be quite similar to those rejected in Cleveland and Kelly. New York’s right to control its bidding process is more akin to a regulatory power than something that fits within the traditional concept of property. What’s more, even if this right were considered property, how did any of the defendants aim to “obtain” that right from the State? It strains the English language to say that Kaloyeros, Aiello, Gerardi, and Ciminelli “obtained” or sought to obtain the “right to select a contractor through a fair and objective bidding process”—in fact, the proposition seems nonsensical. See Sekhar v. United States, 570 U.S. 729, 738 (2013) (Scalia, J.) (describing government’s theory that a non-transferrable and non-obtainable form of property can be the object of a scheme to “obtain” that property” as “mak[ing] nonsense of words”). Perhaps in some cases the facts would support charging an individual with a state kickback violation, see N.Y. Gen. Bus. Law § 340 et seq, but this is not a federal crime and the wire fraud statute should not be stretched to cover such schemes.

The Second Circuit’s “right to control” doctrine is a powerful tool in the hands of prosecutors, but one that cuts against a hefty body of Supreme Court authority. The nebulous concept also threatens to criminalize all kinds of deceptive conduct—perhaps even our seemingly silly example of the feigned movie star who tricks someone into a date. It is also is at odds with conventional notions of what the criminal law should fairly punish. Should someone find themselves sent to federal prison not for defrauding someone of their property but rather for having “made misrepresentations or omissions that affected someone’s economic calculus or the benefits and burdens of an agreement and pertained to the quality of services bargained for, thus exposing that person to unexpected economic risk”? To write these words is to answer the question.

As-Opportunities-Arise

The Court recognized that the trial judge improperly instructed the jury concerning the need for a quid pro quo to involve an “official act” by Percoco. The instruction the trial judge gave would have proper under the Second Circuit’s 2007 decision in Ganim, but the Supreme Court subsequently clarified that even under an “as opportunities arise” theory, the official had to be something concrete—not simply a nebulous promise to assist the briber in the future. See McDonnell v. United States, 136 S. Ct. at 2369 (“[T]he question or matter must be . . . the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.”). The trial judge’s instructions failed to inform the jury of this necessary element.

Even so, the Court found the error to be harmless because the evidence was “overwhelming” that the official acts in question were the approval of the Power Purchase Agreement and waiving the requirement of the Labor Peace Agreement. This is likely true, but it raises the question whether defendants are adequately protected from erroneous jury instructions. After all, courts say that juries are presumed to follow instructions and juries base their verdict in large part on its instructions, and should be entitled to instructions that accurately describe the law. The erroneous instructions in this case are particularly troubling because they involve the central issue of the charged crime: what Percoco promised to do in exchange for bribes. In addition, this is not a situation where the trial court simply was unaware of a recent change in the law, or where the law changed after the jury verdict. The Supreme Court set forth the applicable standard almost two years prior to the trial.

Commentators have long criticized the expansive application of the harmless error doctrine to affirm convictions involving errors of law. One commentator described the modern harmless error doctrine as “basically a judicial assurance that nearly anything will be tolerated in regard to an obviously guilty defendant.” Joseph F. Lawless, Prosecutorial Misconduct: Law, Procedure, Forms, at xii-xiii (2d ed. 1999); see also Sam Kamin, Harmless Error and the Rights/Remedies Split, 88 Va. L. Rev. 1, 7 (2002) (arguing that harmless error “create[s] a firewall between constitutional rights and remedies.). These concerns are not unfounded. Affirming a conviction obtained through legal error because the defendant is obviously guilty —in the court’s view—risks usurping the jury’s duty and prerogative to determine guilt. It also gives trial judges less incentive to meticulously scrutinize their jury instructions and other legal rulings in criminal cases, as they can be fairly confident their judgments will stand in spite of errors.

While this case does involve substantial evidence that Percoco agreed to take specific official acts, the larger trend towards aggressive use of the harmless error doctrine in reviewing jury instructions could be cause for concern.

Fiduciary Duty

The fiduciary duty issue implicates the question of who can commit honest services fraud. The principle underlying honest services fraud is that, because public officials are entrusted with governmental authority, they also have a duty of loyalty to the public they serve. In this case, the Circuit expands this theory beyond public officials to private citizens who exert some level of control over government decisions.

To get there, the Court relied on Margiotta, a Second Circuit case from almost forty years ago, decided under a different statutory framework. In that case the Circuit held (over a forceful dissent by the late Judge Ralph K. Winter) that honest services fraud, under 18 U.S.C. § 1341, did not require a formal employment contract between the defendant and the government, so long as the defendant exercised “domination” over government. In deciding Margiotta, the Circuit relied not on the statutory language of section 1341 or on federal case law, but rather on agency principles of New York common law. The Supreme Court abrogated Margiotta in McNally v. United States, 483 U.S. 350 (1987), when it rejected the entire premise of honest services fraud on the ground that the federal wire fraud statute only covered tangible property. Congress, however, revived the doctrine when it enacted the honest services fraud statute, 18 U.S.C. §1346. With the doctrine reinstated, the Court finds that Margiotta is instructive (though not precedential) on the question of who can be prosecuted for honest service fraud. Notably, the Supreme Court has never endorsed the rule announced in Margiotta. Nor did Congress when it enacted section 1346, although it certainly could have clarified the issue. Curiously, the Court reasons that Congress implicitly “reinstated the Margiotta-theory cases,” relying on a statement by then-Senator Joseph Biden. While reasonable minds could disagree on that point, other circuit courts of appeals have rejected the Second Circuit’s approach, something the Court does not grapple with. See United States v. Murphy, 323 F.3d 102, 104 (3d Cir. 2003), as amended (June 4, 2003) (opining that “Margiotta extends the mail fraud statute beyond any reasonable bounds.”).

The implications of the Court’s holding could potentially be sweeping. While the approach may make sense for true shadow government officials—think William M. Tweed effectively controlling the city and state government in New York through Tammany Hall–it becomes a harder call when applied more broadly. For better or worse, many private entities exert various degrees of control over the government. According to an analysis by Bloomberg, private individuals and companies spent approximately $3.5 billion lobbying the government in 2019—no doubt because they expect their efforts to affect government decisions. Beyond business lobbying, a wide array of interest groups, political action committees, and think tanks play a role in government decisions. Even public officials’ families and friends may have some influence over that official’s thinking and decision making. People like Percoco certainly do not have a monopoly on influencing government decisions. Could honest services fraud extend to misrepresentations made by oil industry lobbyists or religious institutions? Under this expansive view of honest services fraud, not limited by the official act doctrine, it is conceivable that conduct that is not ordinarily viewed as illegal could be subject to prosecution.

* * *

In deciding these appeals, the Court followed its own precedent. The “right to control” doctrine is deeply embedded in Circuit law and nothing short of a decision from the Supreme Court expressly rejecting the doctrine will prevent prosecutors from pursuing cases on that theory. Likewise, the Court will continue to follow Margiotta on the “official actor” issue discussed above unless and until the Supreme Court rules that it used this language deliberately in McDonnell and not only in passing. On balance, the decisions suggest that the court is inclined to affirm property fraud convictions, even if it requires stretching the bounds statutory text. Given the tension between aspects of the Percoco decisions with recent decisions from the Supreme Court, additional guidance from the Supreme Court on the appropriate scope of federal wire and mail fraud would be welcome. This is especially true with respect to the “right-to-control” doctrine commonly employed in the Second Circuit to criminalize a wide range on unethical behavior. In hopes of such a ruling, Patterson Belknap Webb & Tyler recently collaborated on an amicus for the New York Council of Defense Lawyers in support of a petition for certiorari in Gatto v. United States, the case involving violations of the NCAA’s amateurism rules. Hopefully the Supreme Court will take that case to address this issue of critical importance. [3]

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