Opposition Brief — Steven Aiello and Joseph Gerardi, Petitioners v. United States

Nos. 21-1158, 21-1161, 21-1169, and 21-1170

In the Supreme Court of the United States

JOSEPH PERCOCO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

Additional Captions Listed on Inside Cover

STEVEN AIELLO AND JOSEPH GERARDI,

PETITIONERS

v.

UNITED STATES OF AMERICA

ALAIN KALOYEROS, PETITIONER

v.

UNITED STATES OF AMERICA

LOUIS CIMINELLI, PETITIONER

v.

UNITED STATES OF AMERICA

QUESTIONS PRESENTED

1. Whether a person who continues to exercise a

public office in fact after leaving it in name, and who

has been selected to return to the office, is obliged to

provide honest services within the meaning of the federal honest-services fraud statute, 18 U.S.C. 1346, in

carrying out that role.

2. Whether the jury instructions in this case reflected a valid theory of money or property fraud under the federal wire fraud statute, 18 U.S.C. 1343.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 2

Jurisdiction .................................................................................... 2

Statement ...................................................................................... 2

Argument..................................................................................... 11

Conclusion ................................................................................... 30

TABLE OF AUTHORITIES

Cases:

Aldissi v. United States, 140 S. Ct. 1129 (2020) ................. 21

Binday v. United States:

579 U.S. 917 (2016) .......................................................... 21

140 S. Ct. 1105 (2020) ..................................................... 21

Carpenter v. United States, 484 U.S. 19 (1987) ...... 21, 24, 25

Cleveland v. United States, 531 U.S. 12 (2000) ............ 21, 25

Dickman v. Commissioner, 465 U.S. 330 (1984) ................ 22

Dixson v. United States, 465 U.S. 482 (1984) ............... 13, 18

Gatto v. United States, 142 S. Ct. 710 (2021) ..................... 21

Johnson v. United States, 141 S. Ct. 687 (2020) ................. 21

Kelerchian v. United States, 140 S. Ct. 2825 (2020) .......... 21

Kelly v. United States, 140 S. Ct. 1565 (2020) .................... 25

Kergil v. United States, 579 U.S. 918 (2016) ....................... 21

McDonnell v. United States,

579 U.S. 550 (2016).............................................. 7, 17, 18, 19

McNally v. United States, 483 U.S. 350 (1987) ...... 12, 13, 26

Neder v. United States, 527 U.S. 1 (1999) ........................... 21

Pasquantino v. United States, 544 U.S. 349 (2005) ........... 22

Resnick v. United States, 579 U.S. 918 (2016) .................... 21

Scheidler v. National Organization for Women, Inc.,

537 U.S. 393 (2003).............................................................. 25

Sekhar v. United States, 570 U.S. 729 (2013) ..................... 25

(III)

IV

Cases—Continued:

Page

Skilling v. United States,

561 U.S. 358 (2010).......................................12, 13, 17, 18, 24

United States v. Bruchhausen, 977 F.2d 464

(9th Cir. 1992)...................................................................... 27

United States v. Margiotta, 688 F.2d 108

(2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) .... 7, 15, 16

United States v. Murphy, 323 F.3d 102 (3d Cir. 2003) ...... 19

United States v. Sadler, 750 F.3d 585 (6th Cir. 2014)........ 27

United States v. Takhalov, 827 F.3d 1307

(11th Cir. 2016) .............................................................. 27, 28

United States v. Title Insurance & Trust Co.,

265 U.S. 472 (1924).............................................................. 29

United States v. Yates, 16 F.4th 256 (9th Cir. 2021) .... 27, 28

Viloski v. United States:

575 U.S. 935 (2015) .......................................................... 21

137 S. Ct. 1223 (2017) ...................................................... 21

Constitution and statutes:

U.S. Const. I ........................................................................... 17

Hobbs Act, 18 U.S.C. 1951:

18 U.S.C. 1951(a) ............................................................. 25

18 U.S.C. 1951(b)(2) ........................................................ 25

18 U.S.C. 201 ...............................................8, 12, 13, 14, 18

18 U.S.C. 201(a)(1)................................................. 8, 13, 14

18 U.S.C. 201(a)(2)........................................................... 14

18 U.S.C. 666(a)(1)(B) ....................................................... 2

18 U.S.C. 1001(a)(2)........................................................... 3

18 U.S.C. 1341 ............................................................ 11, 21

18 U.S.C. 1343 ...............................................3, 9, 11, 21, 25

18 U.S.C. 1346 ................................................ 2, 5, 7, 12, 13

18 U.S.C. 1349 ........................................................ 2, 3, 5, 9

V

Statutes—Continued:

Page

18 U.S.C. 1001(a)(2)........................................................... 3

N.Y. Penal Code (McKinney Supp. 2022):

§ 10.00(15)......................................................................... 17

§ 200.00 ............................................................................. 17

§ 200.10 ............................................................................. 17

In the Supreme Court of the United States

No. 21-1158

JOSEPH PERCOCO, PETITIONER

v.

UNITED STATES OF AMERICA

No. 21-1161

STEVEN AIELLO AND JOSEPH GERARDI,

PETITIONERS

v.

UNITED STATES OF AMERICA

No. 21-1169

ALAIN KALOYEROS, PETITIONER

v.

UNITED STATES OF AMERICA

No. 21-1170

LOUIS CIMINELLI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 1a46a; Aiello Pet. App. 1a-37a) * are reported at 13 F.4th

180 and 13 F.4th 158. The order of the district court

(Pet. App. 55a-117a) is unreported but is available at

2017 WL 6314146.

JURISDICTION

The judgments of the court of appeals were entered

on September 8, 2021. Petitions for rehearing were

denied on November 1, 2021 (Pet. App. 47a-54a). On

January 7, 2022, Justice Sotomayor extended the time

within which to file petitions for writs of certiorari to

and including March 1, 2022. The petitions were filed

on February 17, 2022 (No. 21-1158), and February 18,

2022 (Nos. 21-1161, 21-1169, and 21-1170). The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial, petitioner Joseph Percoco

was convicted on two counts of conspiring to commit

honest-services wire fraud, in violation of 18 U.S.C.

1346 and 1349, and one count of soliciting bribes or

gratuities, in violation of 18 U.S.C. 666(a)(1)(B).

Percoco Am. Judgment 1. Petitioner Steven Aiello was

convicted on one count of conspiring to commit honestservices wire fraud, in violation of 18 U.S.C. 1346 and

1349. Aiello Judgment 1.

* This brief uses “Pet.” and “Pet. App.” to refer to the petition

and appendix in No. 21-1158; “Aiello Pet.” and “Aiello Pet. App.” to

refer to the petition and appendix in No. 21-1161; “Kaloyeros Pet.”

to refer to the petition in No. 21-1169; and “Ciminelli Pet.” to refer

to the petition in No. 21-1170.

3

Following a second jury trial, Aiello was convicted

on one count of wire fraud, in violation of 18 U.S.C.

1343, and one count of conspiring to commit wire

fraud, in violation of 18 U.S.C. 1343 and 1349. Aiello

Judgment 1. Petitioner Louis Ciminelli was convicted

on one count of wire fraud, in violation of 18 U.S.C.

1343, and one count of conspiring to commit wire

fraud, in violation of 18 U.S.C. 1343 and 1349. Ciminelli Judgment 1. Petitioner Joseph Gerardi was

convicted on one count of wire fraud, in violation of 18

U.S.C. 1343, one count of conspiring to commit wire

fraud, in violation of 18 U.S.C. 1343 and 1349, and one

count of making false statements to federal officers, in

violation of 18 U.S.C. 1001. Gerardi Judgment 1. Petitioner Alain Kaloyeros was convicted on two counts of

wire fraud, in violation of 18 U.S.C. 1343, and one

count of conspiring to commit wire fraud, in violation

of 18 U.S.C. 1349. Kaloyeros Judgment 1.

The district court sentenced Percoco to 72 months

of imprisonment, to be followed by three years of supervised release. Percoco Am. Judgment 2-3. The

court sentenced Aiello to 36 months of imprisonment,

to be followed by two years of supervised release. Aiello Judgment 2-3. The court sentenced Ciminelli to 28

months of imprisonment, to be followed by two years

of supervised release. Ciminelli Judgment 2-3. The

court sentenced Gerardi to 30 months of imprisonment, to be followed by two years of supervised release. Gerardi Judgment 2-3. The court sentenced

Kaloyeros to 42 months of imprisonment, to be followed by two years of supervised release. Kaloyeros

Judgment 2-3.

In two decisions issued on the same day, the court

of appeals affirmed. Aiello Pet. App. 1a-80a.

4

1. The first case below arose out of a bribery

scheme in 2014 involving Percoco and Aiello. Pet. App.

4a-5a.

a. Percoco, the bribe recipient, was an aide to Andrew Cuomo, then the Governor of New York. Pet.

App. 4a. Percoco had served as Executive Deputy Secretary in the Executive Chamber (i.e., the Govenor’s

office). Id. at 4a, 41a. At the time of the scheme’s inception, he had temporarily left his state job to manage Governor Cuomo’s reelection campaign. Id. at 5a;

see id. at 7a. Despite formally leaving state employment, however, Percoco “held onto and used his Executive Chamber telephone, desk, and office, where he

continued to conduct state business.” Id. at 41a. And

Percoco represented that he “had a guaranteed position with Cuomo’s administration after the election.”

Ibid.

Aiello, the bribe payer, was the owner of a realestate development company. Pet. App. 7a. In August

2014, Aiello used an intermediary to funnel $15,000 to

Percoco’s wife. Ibid. Then, in October 2014, after

Percoco had told “several others that he intended to

return to the Governor’s Office,” Aiello “sent an additional $20,000 to Percoco [using] the same circuitous

route.” Ibid. In return, Percoco used his position to

secure favors for Aiello, the first of which was helping

him to secure a waiver of a requirement to enter into a

potentially costly labor peace agreement as a condition

of receiving state funding for a project. Ibid.

After receiving Aiello’s payments, Percoco “directed a state agency * * * to reverse its previous decision requiring [Aiello’s company] to enter into a Labor

Peace Agreement.” Pet. App. 8a. Then, after Governor Cuomo was reelected and Percoco signed his rein-

5

statement forms, but “a few days” before Percoco’s

new term in the Executive Chamber formally began,

Percoco called a state official and directed him to

waive the required labor peace agreement. Ibid.

Percoco placed that call from his desk in the Executive

Chamber, and the recipient of the call interpreted it as

“pressure” from one of his “principals.” Ibid. (citation

omitted). State officials later reversed their position

and waived the required agreement. Id. at 8a-9a.

Percoco continued to repay Aiello’s bribe after resuming his official role in the Executive Chamber. For

example, Percoco “pressured subordinate state officials to prioritize and release outstanding funds that

the state owed” to Aiello’s company. Pet. App. 8a. He

also directed state officials to “process a stalled pay

raise for Aiello’s son,” who had by then become a state

employee. Id. at 9a.

b. A federal grand jury returned a multi-count indictment against Percoco, Aiello, and other defendants. Pet. App. 9a-10a. The indictment charged

Percoco and Aiello with, inter alia, conspiring to commit honest-services wire fraud, in violation of 18

U.S.C. 1346 and 1349, based on the 2014 bribery

scheme. Pet. App. 9a-10a.

Before trial, the district court denied Percoco’s motion to dismiss the indictment. Pet. App. 55a-116a.

The court rejected Percoco’s contention that the

charges against him had to be dismissed to the extent

that they rested on actions he took while he was not

formally employed in state government, but was running Governor Cuomo’s re-election campaign. Id. at

77a. The court observed that the indictment alleged

that even in that capacity, Percoco “continued to function in a senior advisory and supervisory role with re-

6

gard to the Governor’s Office, and continued to be involved in the hiring of staff and the coordination of the

Governor’s official events and priorities.” Ibid. (citation omitted). The court also explained that the government may properly “rely on conduct occurring

when the defendant is temporarily out of office if the

scheme includes actions taken or to be taken when the

defendant returns to government.” Ibid.

At trial, the district court instructed the jury that,

in order to find guilt on the honest-services count, the

government was required to prove that Percoco owed a

duty of honest services to the public. Pet. App. 141a142a. The court explained that, “[w]hile Mr. Percoco

was employed by the state, he owed * * * the public a

duty of honest services by virtue of his official position.” Id. at 142a. The court added, over a defense objection, 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.” Ibid.

The court instructed the jury that it could find that

Percoco owed the public such a duty if it found both

that “he dominated and controlled any governmental

business” and also that “people working in the government actually relied on him because of a special relationship he had with the government.” Ibid. The

court cautioned that “[m]ere influence and participation in the processes of government standing alone are

not enough to impose a fiduciary duty.” Id. at 142a143a.

The jury found Percoco and Aiello guilty of conspiring to commit honest-services wire fraud based on the

bribery scheme described above. Pet. App. 11a. It also found Percoco guilty on two additional charges

7

based on separate conduct, and it found Percoco and

Aiello not guilty on the remaining counts. Ibid.

c. The court of appeals affirmed. Pet. App. 1a-46a.

The court of appeals rejected Percoco’s and Aiello’s

contention that the district court erred by instructing

the jury that Percoco’s liability for honest-services

fraud did not depend solely on whether he was a formal state employee. Pet. App. 24a; see id. at 24a-32a.

The court of appeals observed that, under its decision

in United States v. Margiotta, 688 F.2d 108, 122 (2d

Cir. 1982), cert. denied, 461 U.S. 913 (1983), “a formal

employment relationship” is not a “rigid prerequisite

to a finding of fiduciary duty in the public sector.” Pet.

App. 24a (citation omitted). The court noted that, under Margiotta, private individuals “who in reality or

effect are the government” can “owe a fiduciary duty

to the citizenry.” Id. at 25a (citation omitted).

The court of appeals rejected petitioners’ arguments that the jury instructions were inconsistent with

the text of the honest-services fraud statute, 18 U.S.C.

1346. Pet. App. 25a-32a. The court observed that,

“[o]n its face,” Section 1346’s “capacious language is

certainly broad enough to cover the honest services

that members of the public are owed by their fiduciaries, even if those fiduciaries happen to lack a government title and salary.” Id. at 27a. And the court found

“no statutory basis for distinguishing a formal government employee, who is clearly covered by § 1346,

from a functional employee who owes a comparable duty.” Id. at 28a.

The court of appeals also rejected petitioners’ contention that the jury instructions were inconsistent

with this Court’s decision in McDonnell v. United

States, 579 U.S. 550 (2016), which interpreted the term

8

“official act” in the federal bribery statute, 18 U.S.C.

201. Pet. App. 29a-30a. The court observed that

McDonnell “did not hold that only a formal government officer could perform an ‘official act.’ ” Id. at 30a.

It also took note that the statute in McDonnell prohibited acts not only by an “officer or employee” of the

federal government, but also by a “person acting for or

on behalf of the United States.” Ibid. (quoting 18

U.S.C. 201(a)(1)).

Finally, the court of appeals rejected Aiello’s argument that the jury instructions raised “First Amendment, due process, and federalism” concerns. Pet.

App. 31a. The court saw nothing in the Constitution

that required it “to introduce a new requirement of

formal governmental employment” into Section 1346.

Ibid. (emphasis omitted).

2. The second case below arose out of a bid-rigging

scheme involving Aiello, Ciminelli, Gerardi, and Kaloyeros.

a. The scheme aimed to take advantage of Governor Cuomo’s “Buffalo Billion” initiative, under which

the State aimed to invest one billion dollars of public

money in the Buffalo area. Aiello Pet. App. 49a. The

State authorized a non-profit corporation, the Fort

Schuyler Management Corporation, to award contracts under that initiative. Id. at 51a; Gov’t C.A. Br.

27. In choosing contractors, “Fort Schuyler employed

a request-for-proposal * * * process under which it

would announce its needs for each project through [a

request for proposals] and then permit interested parties to compete for the projects by submitting bids and

a description of their qualifications.” Aiello Pet. App.

51a. Kaloyeros, a member of Fort Schuyler’s Board of

Directors, manipulated that process to benefit a com-

9

pany owned by Aiello and Gerardi and another company owned by Ciminelli. Id. at 50a-56a.

Specifically, Kaloyeros steered the Board to designate “preferred developers” and to grant them the

first opportunity to negotiate for specific projects. Aiello Pet. App. 52a; see id. at 50a-56a. He then drafted

the requests for proposals for those positions “in a way

that would give [his co-conspirators’ companies] an advantage.” Id. at 52a. For example, one request for

proposals required the developer to have 15 years of

experience, to use a particular type of software, and to

satisfy other requirements “lifted directly from the list

of qualifications Aiello and Gerardi had prepared and

sent.” Id. at 53a. Another request for proposals “contained specifications unique to” Ciminelli’s company,

including a 50-year experience requirement, “a requirement that the preferred developer be headquartered in Buffalo, and additional language lifted directly

from talking points provided to Kaloyeros from Ciminelli.” Ibid.

The Board—without knowledge of Kaloyeros’s ties

to Aiello, Gerardi, and Ciminelli—chose Aiello’s and

Gerardi’s company under one request for proposals

and Ciminelli’s company under another. Aiello Pet.

App. 55a. Aiello’s and Gerardi’s company ultimately

received construction projects worth $105 million, and

Ciminelli’s company ultimately received a project

worth $750 million. Ibid.

b. The grand jury charged Kaloyeros, Aiello, Ciminelli, and Gerardi with multiple crimes, including

wire fraud, in violation of 18 U.S.C. 1343, and conspiring to commit wire fraud, in violation of 18 U.S.C.

1343, 1349. See Aiello Pet. App. 56a-57a.

10

At trial, the district court instructed the jury that it

could find guilt on those counts only if it found beyond

a reasonable doubt that “the alleged scheme contemplated depriving Fort Schuyler of money or property.”

Aiello Pet. App. 87a. The court told the jury that

“[p]roperty” includes “intangible interests such as the

right to control the use of one’s assets” and that a defendant deprives a victim of that right when he deprives the victim of “potentially valuable economic information that it would consider valuable in deciding

how to use its assets.” Id. at 87a-88a. The court made

clear that, to prove the charge on that basis, the government was required to show that petitioners had exposed Fort Schuyler to “tangible economic harm,”

such as “an economic discrepancy between what Fort

Schuyler reasonably anticipated it would receive and

what it actually received.” Id. at 88a. “If all the government proves is that the * * * defendant caused

Fort Schuyler to enter into an agreement it otherwise

would not have, or caused Fort Schuyler to transact

with a counterparty it otherwise would not have, without proving that Fort Schuyler was thereby exposed to

tangible economic harm,” the court instructed, “then

the government will not have met its burden of proof.”

Ibid.

The jury found petitioners guilty on all counts. Aiello Pet. App. 57a.

c. The court of appeals affirmed. Aiello Pet. App.

45a-80a. The court rejected petitioners’ contention

that “the right-to-control theory of wire fraud is itself

invalid,” noting that the theory was “well-established

in Circuit precedent.” Id. at 48a n.2. It also rejected

Aiello and Kaloyeros’ contention that the right-tocontrol instruction erroneously “permitted the jury to

11

convict even if it found that Fort Schuyler received,

and was intended to receive, the full economic benefit

of its bargain.” Id. at 70a. The court observed that,

contrary to petitioners’ interpretation, the instructions

allowed the jury to find petitioners guilty only if the

scheme contemplated “tangible economic harm.” Id.

at 71a (citation omitted). It determined that “there

was no error, and certainly no harmful error, in the

district court’s right-to-control jury instruction.” Id.

at 72a.

ARGUMENT

Percoco and Aiello contend (Pet. 21-30; Aiello Pet.

14-22) that the jury instructions in their case were

flawed because they did not treat a current formal employment relationship with the State as an invariably

necessary component of a duty to provide honest services to the public. Aiello, Ciminelli, Gerardi, and

Kaloyeros contend (Aiello Pet. 28-36; Kaloyeros Pet.

18-26; Ciminelli Pet. 11-25) that their convictions rest

on a legally invalid “right to control” theory. The

court of appeals correctly rejected petitioners’ contentions. Its decisions do not conflict with any decision of

this Court or any other court of appeals. And these

cases also would be poor vehicles for reviewing petitioners’ contentions. The petitions for writs of certiorari should be denied.

1. Percoco’s and Aiello’s challenge to their convictions for conspiring to commit honest-services fraud

does not warrant further review.

a. Federal law has long prohibited fraud committed

by means of interstate mail or wires. See 18 U.S.C.

1341 and 1343. In a line of cases that began in the

1940s, the courts of appeals held that the mail and wire

fraud statutes prohibited schemes to deprive others of

12

the right to “honest services.” See Skilling v. United

States, 561 U.S. 358, 400-401 (2010). In McNally v.

United States, 483 U.S. 350 (1987), however, this Court

rejected the honest-services theory of fraud. Congress

responded by enacting 18 U.S.C. 1346, which expressly

provided that the fraud statutes covered a “scheme or

artifice to deprive * * * another of the intangible

right of honest services.” Ibid.; see Skilling, 561 U.S.

at 402.

In Skilling v. United States, supra, this Court rejected the claim that the honest-services statute is void

for vagueness. 561 U.S. at 399-413. Avoiding vagueness concerns, the Court read the statute “to encompass only bribery and kickback schemes.” Id. at 412.

The Court explained that the “prohibition on bribes

and kickbacks draws content not only from pre-McNally

case law, but also from federal statutes proscribing—

and defining—similar crimes.” Ibid. In particular, the

court highlighted 18 U.S.C. 201, which prohibits bribery involving federal officials; the court read the honestservices fraud statute to reach similar schemes involving “state and local corruption” and “private-sector

fraud.” Skilling, 561 U.S. at 413 n.45; see, e.g.,

McDonnell v. United States, 579 U.S. 550, 580 (2016)

(defining honest-services fraud with reference to Section 201).

The lower courts correctly eschewed an invariable

requirement that a person “have a formal employment

relationship with the state in order to owe * * * a duty of honest services to the public.” Pet. App. 142a. A

person who lacks such a relationship can still owe such

a duty in limited circumstances. For example, the

court of appeals’ “pre-McNally case law” and Section

201, both of which give “content” to the honest-

13

services fraud statute, Skilling, 561 U.S. at 412, illustrate that a person who has nominally relinquished a

public office but who “in reality” continues to exercise

that office can qualify as a “de facto” public official

who owes a duty to provide honest services. Pet. App.

25a (citations omitted).

As this Court observed in McNally, the honestservices doctrine established in the courts of appeals—

which Congress revived in 18 U.S.C. 1346—could treat

“an individual without formal office” as “a public fiduciary if others rely on him because of a special relationship with the government and he in fact makes

governmental decisions.” 483 U.S. at 355 (citation and

internal quotation marks omitted); see Skilling, 561

U.S. at 402. In addition, Section 201, which likewise

informs the scope of honest-services fraud, defines a

“ ‘public official’ ” subject to federal bribery law to include not only “an officer or employee,” but also a

“person acting for or on behalf of the United States

* * * in any official function.” 18 U.S.C. 201(a)(1); see

Skilling, 561 U.S. at 412. As this Court has recognized, Section 201’s text is therefore not limited to

“persons in a formal employment or agency relationship with the Government.” Dixson v. United States,

465 U.S. 482, 494 (1984). Because a person can qualify

as a “ ‘public official’ ” if he in fact acts for or on behalf

of the government, even if he does not formally qualify

as an “ ‘officer or employee,’ ” “employment by the

United States or some other similarly formal contractual or agency bond is not a prerequisite to prosecution under the federal bribery statute.” Id. at 490, 498

(quoting 18 U.S.C. 201).

Relatedly, a person who has been selected to serve

as a public official can owe a duty of honest services

14

even if his term of office has not yet begun. Section

201, by its express terms, covers not only bribery involving a public official but also bribery involving a

“ ‘person who has been selected to be a public official’ ”

—a term it defines to include “any person who has

been nominated or appointed to be a public official, or

has been officially informed that such person will be so

nominated or appointed.” 18 U.S.C. 201(a)(2). Thus,

just as a federal appointee can violate Section 201 by

accepting bribes before his term of federal office begins, so too can a state appointee commit honestservices fraud by accepting bribes before his term of

state office begins.

Here, Percoco owed a duty to provide honest services on both of those grounds during his temporary

break, to run the governor’s reelection campaign, from

his once-and-future position as a formally stateemployed governor’s aide. The evidence showed that

Percoco was “in reality” a public official at the time of

the bribery scheme at issue. Pet. App. 25a (citation

omitted). Although Percoco had nominally left his post

in the Executive Chamber, he in fact continued to carry out that role: he “held onto and used his Executive

Chamber telephone, desk, and office”; he “continued to

conduct state business”; and he “maintained control

over official matters.” Id. at 41a-42a. In fact, Percoco

“was at his desk in the Executive Chamber” when he

called another state official to pressure him to waive

the required labor peace agreement. Id. at 8a.

The evidence also showed that Percoco had been

“selected to be a public official” in New York. 18

U.S.C. 201(a)(2). Percoco “represented that he had a

guaranteed position with Cuomo’s administration after

the election” and “had told his bank and several others

15

that he intended to return to the Governor’s Office.”

Pet. App. 7a, 41a. Then, after he “had already signed

and submitted his reinstatement forms” but a few days

before he formally returned to his position, Percoco

called another state official to pressure him to help Aiello’s company. Id. at 8a. And Percoco continued to

repay Aiello’s bribe with favors after formally returning to state employment, for instance by pressuring

state officials to release outstanding funds to Aiello’s

company and to process a stalled pay raise for Aiello’s

son. Id. at 8a-9a.

b. Petitioners’ contrary arguments lack merit. Petitioners principally criticize the court of appeals’ decision in a different case from four decades ago, United

States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert.

denied, 461 U.S. 913 (1983). As the government observed below, however, “this case does not go as far as

Margiotta.” Gov’t C.A. Br. 90. Although the decision

below “reaffirm[ed] Margiotta’s reliance-and-control

theory in the public-sector context,” Pet. App. 25a

(emphasis added), it did not—and had no occasion to—

apply or uphold it in the type of circumstances on

which petitioners focus. As a result, petitioners’ criticisms of Margiotta are largely misplaced in the context of this case.

In Margiotta, the chairman of a local political party

was convicted of honest-services fraud for accepting

payments in return for exercising his political influence over local officials. 688 F.2d at 113. Unlike

Percoco, the chairman did not occupy a public office

and had not been selected to serve as a public official.

Id. at 112. The court of appeals concluded, however,

that the chairman’s “prestige,” “political power,” and

“influence and control over governmental processes”

16

were sufficiently “substantial” to give rise to a fiduciary duty to the public. Id. at 111, 113, 122.

The decision below does not directly address, or expressly embrace, that result. As the court of appeals

noted, the district court here explicitly instructed the

jury that “mere influence and participation standing

alone are not enough to impose a fiduciary duty.” Pet.

App. 24a (emphasis added; brackets and citation omitted). And Percoco’s fiduciary duty did not rest solely

on his “prestige,” “political power,” or informal “influence.” Margiotta, 688 F.2d at 111, 113, 122. Instead,

the facts demonstrated that (1) Percoco continued to

function as a public official even after nominally leaving the office and (2) Percoco had been selected to (and

then did) serve again as a public official in the same

position. See pp. 14-15, supra. The questions presented in the petitions—whether a private citizen owes a

fiduciary duty by virtue of his “informal political or

other influence over governmental decisionmaking”

(Pet. i) or whether “paying an influential private citizen to advocate one’s position” constitutes honestservices fraud (Aiello Pet. i)—thus encompass a broader

amount of conduct than the actual decision below.

Contrary to petitioners’ suggestion (e.g., Pet. 20) the

court did not have occasion to, and thus did not, consider the vitality of Margiotta’s conclusion that a party

leader’s informal “influence” can give rise to a fiduciary duty. Margiotta, 688 F.2d at 122.

Petitioners err in asserting (Pet. 21-30; Aiello Pet.

19-22) that the court of appeals’ decision in this case

raises constitutional and practical problems. The decision does not raise lenity or vagueness concerns (Pet.

28; Aiello Pet. 17), because pre-McNally case law and

Section 201 provide notice that a person who functions

17

as a public official or has been selected to serve as a

public official does not immunize himself to commit

federal fraud merely by avoiding contemporaneous

formal employment. The decision also does not raise

federalism concerns (Pet. 29-30; Aiello Pet. 21); to the

contrary, the recognition of a fiduciary duty in these

circumstances is fully consistent with “New York law.”

Pet. App. 25a; see, e.g., N.Y. Penal Code §§ 10.00(15),

200.00, 200.10 (McKinney Supp. 2022) (prohibiting

bribery of public servants, a term defined to include

persons who have been selected to serve as public servants). Nor does the decision below raise First Amendment concerns (Pet. 30; Aiello Pet. 19-20). Percoco was

not, as petitioners suggest, a “private citizen” who received money to “lobby the government, Aiello Pet. 14

(capitalization and emphasis omitted); he was a highranking government official who continued to oversee

official business despite taking an effective leave of absence from his post, and he accepted large bribes in

return for wielding his authority to pressure subordinate government officials to perform official acts.

c. Petitioners are incorrect in claiming (Pet. 26-28;

Aiello Pet. 15-18) that the decision below conflicts with

this Court’s decisions in Skilling and McDonnell v.

United States, supra. In the footnote of Skilling on

which petitioners rely (Pet. 26-28), the Court noted

that, in pre-McNally cases, “[t]he existence of a fiduciary relationship, under any definition of that term, was

usually beyond dispute; examples include public

official-public, * * * employee-employer, * * * and

union official-union members.” 561 U.S. at 407 n.41.

That footnote sets forth “examples” of cases in which a

person can owe a fiduciary duty; it does not provide an

exhaustive list, or even indicate that the existence of a

18

fiduciary duty must be “beyond dispute” in every case.

Ibid. In addition, its list of examples includes the duty

of a “public official” to the “public,” ibid.; the decision

in Skilling goes on to identify Section 201 bribery as a

source of “content” for honest-services fraud, id. at

412; and under Section 201, a person can qualify as a

“public official” bribe-taker without “formal employment,” so long as he “occupies a position of public trust

with official federal responsibilities,” Dixson, 465 U.S.

at 494, 496, as may be true for someone who in fact

wields authoritative executive power.

In McDonnell, this Court explained that a payment

qualifies as a bribe for purposes of a Section 201

charge, or equivalent honest-services charge, only if

given with the intent to influence an official act. 579

U.S. at 572; see id. at 562. Consistent with that requirement, “the jury [in this case] 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.’ ” Pet. App. 10a (citation omitted).

Contrary to petitioners’ suggestion (Aiello Pet. 18), a

person who does not have a formal employment relationship with the government can still agree to perform an official act. Cf. Dixson, 465 U.S. at 496 (referring to “official federal responsibilities”).

McDonnell defines an official act to include not only

rendering an official decision on a question or matter,

but also exerting “pressure on another official” to render such a decision. 579 U.S. at 572. A person who

lacks a formal employment relationship with the government can still exert such pressure; indeed, in this

case, Percoco called another state official to pressure

him to excuse Aiello’s company from having to obtain a

19

labor peace agreement. Pet. App. 8a. Further,

McDonnell does not require that the official actually

perform the official act; “it is enough that the official

agree to do so.” 579 U.S. at 572. Even if a person who

has been selected for public office could not yet perform an official act, he could still agree to perform

such an act after he takes office.

d. Petitioners also err in asserting (Pet. 17-18; Aiello Pet. 22), that certiorari is warranted based on a conflict between the decision below and the Third Circuit’s decision in United States v. Murphy, 323 F.3d

102 (2003). Murphy—like Margiotta but unlike this

case—involved a party chairman who accepted payments in return for exercising his influence over local

politics. Id. at 105-108. The Third Circuit concluded

that the party chairman could not be convicted of honest-services fraud, declining to treat “private party officials in the same manner as public officials.” Id. at

118. But although Murphy disavowed Margiotta in

that way, see id. at 114-118, it did not squarely foreclose the possibility of an honest-services-fraud conviction of a defendant who was not a formal state employee. In particular, it did not address whether a onceand-future state official like Percoco, who continued to

exercise authority over state actors, could owe a fiduciary duty to the public.

The Third Circuit instead resolved Murphy on the

ground that the government had failed to “identify any

clearly established fiduciary relationship or legal duty

in either federal or state law between Murphy and

Passaic County or its citizens * * * beyond a criminal

statute,” which the Third Circuit did “not believe can

create a fiduciary relationship.” 323 F.3d at 117. As

explained above, the convictions in this case do not rest

20

on the theory that a party official can owe a fiduciary

duty to the public by virtue of his political influence, or

solely on the basis of a state criminal-bribery law. It

instead rests on Percoco’s role as a de facto public official while nominally, and temporarily, having relinquished a public office to which he was slated to return. That was not at issue in Murphy, which also

predates Skilling’s explication of the relevant sources

of law for an honest-services prosecution. Nothing in

that two-decade-old decision warrants the Court’s review of this case.

Indeed, this case also would be a poor vehicle for

resolving any circuit conflict. The government relied

below on a “retainer theory” of bribery, arguing that

Percoco agreed to provide Aiello a stream of benefits

in return for payments from Aiello. Pet. App. 64a.

Although Percoco provided some of those benefits

(such as pressuring a state official to waive the labor

peace agreement) after he had submitted his reinstatement forms but before he formally resumed his

official position, he provided other benefits (such as

pressuring state officials to release outstanding funds

to Aiello’s company and to process a stalled pay raise

for Aiello’s son) “[a]fter he resumed his official role in

Governor Cuomo’s administration.” Id. at 8a. Even if

Percoco did not owe a duty to provide honest services

when he provided the former benefits, he indisputably

owed such a duty when he provided the latter benefits

—and the agreement to provide the latter benefits

would suffice to support petitioners’ convictions. See

Gov’t C.A. Br. 92-94 (arguing harmlessness).

2. Petitioners Aiello, Ciminelli, Gerardi, and Kaloyeros independently contend (Aiello Pet. 24-36; Kaloyeros Pet. 18-25; Ciminelli Pet. 11-24) that their con-

21

victions rest on a legally invalid “right to control” theory of wire fraud. That contention lacks merit, and

this Court has recently and repeatedly denied certiorari petitions raising similar claims. See Gatto v.

United States, 142 S. Ct. 710 (2021) (No. 21-169);

Johnson v. United States, 141 S. Ct. 687 (2020) (No.

19-1412); Kelerchian v. United States, 140 S. Ct. 2825

(2020) (No. 19-782); Aldissi v. United States, 140 S. Ct.

1129 (2020) (No. 19-5805); Binday v. United States,

140 S. Ct. 1105 (2020) (No. 19-273); Viloski v. United

States, 137 S. Ct. 1223 (2017) (No. 16-508); Kergil v.

United States, 136 S. Ct. 2488 (2016) (No. 15-1177);

Resnick v. United States, 579 U.S. 918 (2016) (No. 158582); Binday v. United States, 579 U.S. 917 (2016)

(No. 15-1140); Viloski v. United States, 575 U.S. 935

(2015) (No. 14-472). The same result is warranted

here.

a. The federal wire fraud statute makes it a crime

to use a wire communication to execute “any scheme or

artifice to defraud, or for obtaining money or property

by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. 1343. The statutory

phrase “scheme or artifice to defraud” covers “schemes

to deprive [people] of their money or property.” Cleveland v. United States, 531 U.S. 12, 19 (2000) (citations

omitted). And the term “ ‘property’ ” includes “intangible property rights.” See Carpenter v. United

States, 484 U.S. 19, 25 (1987) (quoting 18 U.S.C. 1341);

see also, e.g., Neder v. United States, 527 U.S. 1, 20-21

(1999) (treating mail and wire fraud statutes similarly).

The district court here correctly instructed the jury

that “[p]roperty” includes “intangible interests such as

the right to control the use of one’s assets.” Aiello Pet.

App. 87a. The court further instructed the jury that a

22

scheme aims to deprive a person of that right if it contemplates causing the person to enter into an agreement or transaction that would cause the person “tangible economic harm.” Id. at 88a. Such an “ ‘economic’

interest,” Pasquantino v. United States, 544 U.S. 349,

357 (2005), is a form of property covered by the wirefraud statute. See, e.g., Dickman v. Commissioner,

465 U.S. 330, 336 (1984) (“[T]he use of valuable property * * * is itself a legally protectible property interest.”).

The jury permissibly found that petitioners’

scheme—which involved “falsely representing to Fort

Schuyler that the bidding processes * * * were fair,

open, and competitive, when, in truth, [they] were tailored so that Messrs. Aiello and Gerardi’s company

* * * and Mr. Ciminelli’s company * * * would be selected as preferred developers,” C.A. R.O.A. 1554—

caused tangible economic harm to Fort Schuyler. The

prosecution’s evidence showed that the scheme deceived Fort Schuyler into awarding contracts to those

companies, rather than other companies that could

have provided better rates or superior services. Aiello

Pet. App. 64a n.8. The evidence showed, for instance,

that “absent the fraud, Fort Schuyler would have considered more, and perhaps stronger, applications in

response to the [requests for proposals].” Ibid. It also

showed that, in the absence of the misrepresentations,

Fort Schuyler “might have been able to select a preferred developer who could offer more favorable economic terms for development contracts.” Ibid.

b. Petitioners’ arguments are unsound. First and

foremost, petitioners err in suggesting that the instructions in this case allowed, and the court of appeals’ decision countenanced, a finding of fraud based

23

solely on falsehoods directed at causing another person to use his property in way that he would not otherwise have done—even if the person faced no economic harm as a result of that use. See Aiello Pet. 1

(“[T]he Second Circuit held, under its ‘right to control’

doctrine, that the wire fraud statute doesn’t require

the government to prove any actual or contemplated

economic loss. Rather, merely failing to disclose information a person might find valuable in deciding how

to expend his assets can be federal property fraud—

even without evidence of any harm.”); Kaloyeros Pet.

10 (“Nor did the government allege or attempt to

prove contemplated or actual loss to Fort Schuyler.”);

Ciminelli Pet. 9-10 (“[T]he right-to-control theory

made it unnecessary for the government to show that

even the completed scheme produced tangible economic harm to Fort Schuyler.”).

The district court expressly instructed the jury that

the government was required to prove that the scheme

contemplated “tangible economic harm,” such as “an

economic discrepancy between what Fort Schuyler

reasonably anticipated it would receive and what it actually received.” Aiello Pet. App. 88a. The court also

instructed the jury that, “[i]f all the government

proves is that the * * * defendant caused Fort

Schuyler to enter into an agreement it otherwise would

not have, or caused Fort Schuyler to transact with a

counterparty it otherwise would not have, without

proving that Fort Schuyler was thereby exposed to

tangible economic harm, then the government will not

have met its burden of proof.” Ibid. The court of appeals, in turn, made clear that the “right-to-control

theory requires proof that ‘misrepresentations or nondisclosures can or do result in tangible economic

24

harm.’ ” Id. at 60a (citation omitted). And it emphasized that the jury instructions in this case “explicitly

provided that the government could not meet its burden by merely showing that the defendants caused

Fort Schuyler to enter into an agreement or transaction ‘without proving that Fort Schuyler was thereby

exposed to tangible economic harm.’ ” Id. at 71a (citation omitted).

More generally, contrary to petitioners’ contention,

the fraud statutes are not limited to property interests

“that can be transferred from the alleged victim to the

defendant.” Aiello Pet. 31; see Kaloyeros Pet. 23; Ciminelli Pet. 17-18. In Carpenter v. United States, supra, this Court upheld mail- and wire-fraud convictions

of defendants who conspired to trade on financial information to be published in a forthcoming newspaper

column that had not yet become public. 484 U.S. at 2224. The Court explained that the newspaper “had a

property right in keeping confidential and making exclusive use, prior to publication, of the [information

contained in the] column.” Id. at 26. Notwithstanding

that the defendants’ scheme did not directly transfer a

right of confidentiality and exclusivity from the newspaper to themselves, the Court had “little trouble”

concluding that the defendants had engaged in a

scheme to defraud because the newspaper had “been

deprived of its right to exclusive use of the information.” Id. at 26, 28. Accordingly, although the

Court has sometimes paraphrased the statutory requirements in slightly different language, see, e.g.,

Ciminelli Pet. 18 (citing Skilling, 561 U.S. at 400),

Carpenter forecloses any requirement of precise congruence between an intended loss to the victim and

25

gain by the defendant. See Carpenter, 484 U.S. at 2728.

Sekhar v. United States, 570 U.S. 729 (2013), and

Scheidler v. National Organization for Women, Inc.,

537 U.S. 393 (2003)—on which petitioners rely (Aiello

Pet. 32; Kaloyeros Pet. 24-25; Ciminelli Pet. 19)—do

not show otherwise. Those cases concerned Hobbs Act

extortion, see 18 U.S.C. 1951(a), not mail or wire fraud.

One element of Hobbs Act extortion is “the obtaining

of property from another.” 18 U.S.C. 1951(b)(2). This

Court interpreted that element to require “ ‘not only

the deprivation but also the acquisition of property,’ ”

which in turn means that the “property extorted must

* * * be transferable.” Sekhar, 570 U.S. at 734 (quoting Scheidler, 537 U.S. at 404). The text of the wirefraud statute, however, does not specify a particular

source for property that the defendant intends to obtain. See 18 U.S.C. 1343 (criminalizing use of wires for

“any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent

pretenses, representations, or promises”).

Petitioners err in arguing (Aiello Pet. 31-32; Kaloyeros Pet. 23; Ciminelli Pet. 17-18) that the decision

below conflicts with this Court’s decisions in Kelly v.

United States, 140 S. Ct. 1565 (2020), and Cleveland v.

United States, supra. In those cases, the Court held

that a government’s control of a bridge (Kelly) or of

state gambling licenses (Cleveland) did not constitute

a “property” right for purposes of the fraud statutes,

because those interests were regulatory rather than

proprietary. See Kelly, 140 S. Ct. at 1572-1573; Cleveland, 531 U.S. at 15, 20-22. Petitioners’ scheme here,

however, was directed not at a state’s “sovereign power to regulate,” Kelly, 140 S. Ct. at 1572 (citation omit-

26

ted), but at Fort Schuyler’s expenditure of its money.

They planned to—and did—receive money from Fort

Schuyler after manipulating the bid-submission process in a manner that impeded Fort Schuyler’s ability

to get better services, a lower price, or both from an

alternative provider.

Contrary to Kaloyeros’s assertion (Kaloyeros Pet.

18-19), the decision below also does not conflict with

this Court’s decision in McNally. Kaloyeros characterizes (Kaloyeros Pet. 18) the “fact pattern of this

case” as “almost a mirror of McNally: a state official

was tried by federal prosecutors for a scheme to steer

state contracts to certain favored vendors.”

In

McNally, however, this Court reversed the conviction

because “there was no charge and the jury was not required to find that the [victim] was defrauded of any

money or property.” 483 U.S. at 360. In this case, in

contrast, the jury was instructed that it could find petitioners guilty only if the scheme “contemplated depriving Fort Schuyler of money or property” and that Fort

Schuyler was “exposed to tangible economic harm.”

Aiello Pet. App. 71a, 87a (citation omitted).

Finally, petitioners’ contentions (Aiello Pet. 33-36;

Kaloyeros Pet. 25-26; Ciminelli Pet. 22-25) that the decision below raises constitutional concerns are unsound. Those contentions rest on the premise that the

decision below extends to schemes “that contemplated

no financial harm,” Ciminelli Pet. 25, but as explained

above, the jury instructions specifically required proof

of exposure to “tangible economic harm,” Aiello Pet.

App. 88a.

c. The decision below is consistent with the decisions of other courts of appeals. Contrary to petitioners’ assertions (Aiello Pet. 26-28; Kaloyeros Pet. 14-17;

27

Ciminelli Pet. 26-28), it does not conflict with United

States v. Sadler, 750 F.3d 585 (6th Cir. 2014), United

States v. Bruchhausen, 977 F.2d 464 (9th Cir. 1992),

United States v. Yates, 16 F.4th 256 (9th Cir. 2021), or

United States v. Takhalov, 827 F.3d 1307 (11th Cir.

2016).

Sadler and Brucchausen concerned the application

of the federal fraud statutes to buyers who deceived

sellers about the use to which the goods being bought

at full price would be put—a matter that, in the context of those cases, was not an essential term of the

bargain. See Sadler, 750 F.3d at 590-591 (false assurances that purchased opiates would be used for poor

patients); Bruchhausen, 977 F.2d at 466-468 (false assurances that purchased equipment would not be sent

to certain foreign countries). The Sixth and Ninth Circuits found that the deception in those cases did not

constitute fraud because the seller had no property interest in “accurate information” about the intended

use of its products, Sadler, 750 F.3d at 591, or “in the

disposition of goods it no longer owns,” Bruchhausen,

977 F.2d at 468. This case, however, does not involve a

buyer’s deception of a seller about the ultimate disposition of the items that it purchased at fair market value. See Aiello Pet. App. 88a (requiring jury finding of

“tangible economic harm”). And unlike those cases,

the deception in this case did concern “an essential element of the bargain.” Id. at 63a (citation omitted).

In Yates, the Ninth Circuit concluded that bank executives could not be convicted of bank fraud simply

for depriving the bank of “accurate information.” 16

F.4th at 265. The Ninth Circuit explained that, to

qualify as a scheme to defraud, “the scheme must be

one to deceive the bank and deprive it of something of

28

value.” Ibid. (citation omitted). The convictions in this

case, however, do not rest on the premise that petitioners simply deceived Fort Schuyler or deprived it of

accurate information. The instructions permitted the

jury to find petitioners guilty only if the scheme also

contemplated “tangible economic harm” to Fort

Schuyler. Aiello Pet. App. 88a.

Finally, in Takhalov, the Eleventh Circuit concluded that the defendants did not commit wire fraud by

“trick[ing] the victims into entering a transaction but

nevertheless g[iving] the victims exactly what they

asked for and charg[ing] them exactly what they

agreed to pay.” 827 F.3d at 1310. In its decision, the

Eleventh Circuit observed that “[t]he Second Circuit

has interpreted the wire-fraud statute in precisely [the

same] way.” Id. at 1314. And the Second Circuit’s decision here is consistent with that understanding; as

the court of appeals emphasized, the jury instructions

“explicitly provided that the government could not

meet its burden by merely showing that the defendants caused Fort Schuyler to enter into an agreement

or transaction” that it would otherwise have avoided.

Aiello Pet. App. 71a. The result here differs from the

result in Takhalov because this case, unlike Takhalov,

involved “an economic discrepancy between what [the

victim] reasonably anticipated it would receive and

what it actually received.” Ibid. (citation omitted).

d. At all events, this case would be a particularly

poor vehicle for reviewing petitioners’ contentions.

The court of appeals determined that “there was no

error, and certainly no harmful error, in the district

court’s right-to-control jury instruction.” Aiello Pet.

App. 72a (emphasis added). Although the court of appeals’ reference to “harmful error” is brief, it suggests

29

that the court’s judgment rests on alternative determinations that there was no error and that any error

was harmless. Petitioners would therefore need to establish that the court erred on both grounds in order

to obtain reversal. See United States v. Title Insurance & Trust Co., 265 U.S. 472, 486 (1924). Petitioners, however, have not addressed harmlessness, and

the court of appeals was correct in finding “no harmful

error” here. Aiello Pet. App. 72a.

The evidence showed that petitioners’ scheme contemplated the deprivation of Fort Schuyler’s money,

not just the deprivation of its right to control assets.

More specifically, the evidence showed that other

companies had “management fees” that were “typically lower than those of both” Aiello’s and Gerardi’s

company and Ciminelli’s company. Aiello Pet. App.

64a n.8; see C.A. App. 1285, 1296-1297, 1322-1323,

1337-1338, C.A. Supp. App. 766. And the very object of

petitioners’ bid-rigging scheme was to exclude competitors that might provide better terms or lower prices.

Had petitioners been confident that Aiello’s and Gerardi’s company and Ciminelli’s company could prevail

in a fair system, they would have had no need for a

rigged one. Thus, even if the jury had not been instructed on the right-to-control theory, it would have

found that petitioners’ scheme was designed to deprive

Fort Schuyler of money or property.

Even putting aside that issue, petitioners err in arguing (Aiello Pet. 37-38; Ciminelli Pet. 33-36) that this

case is a better vehicle for resolving the question presented than other certiorari petitions that have raised

the same question but that the Court has denied. Petitioners attempt to distinguish many of those earlier

petitions by arguing that “the scheme at issue did

30

cause traditional economic harm” (Ciminelli Pet. 35) or

that “the jury found the fraud scheme caused or would

cause economic harm” (Aiello Pet. 38). In this very

case, however, the district court instructed the jury

(and the court of appeals agreed) that the government

was required to show that the scheme exposed Fort

Schuyler to “tangible economic harm.” Aiello Pet.

App. 88a; see id. at 60a. To the extent that petitioners

might disagree about the meaning of that instruction

in this specific case, that disagreement would not warrant this Court’s review. This case thus suffers from

the same “vehicle problems” that petitioners attribute

to earlier petitions that this Court has denied: “the

jury found the fraud scheme caused or would cause

economic harm.” Aiello Pet. 38.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

WILLIAM A. GLASER

Attorney

MAY 2022