16‐3163
United States v. Perrotti
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 21st day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR.,
DENNIS JACOBS,
Circuit Judges,
KATHERINE B. FORREST,1
District Judge.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 16‐3163
PAUL PERROTTI,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
1 Judge Katherine B. Forrest, of the United States District Court for the Southern
District of New York, sitting by designation.
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FOR APPELLEE: SARAH P. KARWAN, Assistant
United States Attorney (Marc. H.
Silverman, of counsel, on the brief),
for John H. Durham, United States
Attorney for the District of
Connecticut; New Haven, CT.
FOR DEFENDANT‐APPELLANT: MARTIN MINNELLA, Minnella,
Tramuta & Edwards; Middlebury,
CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Meyer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Paul Perrotti appeals from a judgment entered September 13, 2016 by the
United States District Court for the District of Connecticut (Meyer, J.) convicting
him on two counts of theft from a program receiving federal funds, in violation
of 18 U.S.C. § 666. He was sentenced to three months’ imprisonment and three
years of supervised release. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
For several years, Perrotti was both the Middlebury Fire Chief and the
President of the Middlebury Volunteer Fire Department, Inc. (the “MVFD”), a
non‐profit 501(c)(3) organization that provided fire and ambulance services to
the Middlebury Fire Department. His day job was as a licensed electrician and
owner of Paul Perrotti Electric LLC (“PPE”). The government’s indictment
charged Perrotti with submitting requests for reimbursement to Middlebury in
his capacity as Fire Chief for expenses he represented were related to the MVFD,
but in fact related to PPE and Perrotti’s own personal expenses. On the basis of
this conduct, the jury convicted Perrotti on Counts Two and Three of the
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indictment (for 2012 and 2013), but was unable to reach a verdict as to Count One
(for 2011).
1. Perrotti argues, pursuant to Federal Rules of Criminal Procedure 29(c)
and 33, that he was not an employee of the Town of Middlebury and that he was
therefore not an agent of the local government, as required by 18 U.S.C. §
666(a)(1). Perrotti cites Connecticut General Statutes § 7‐301, which authorizes
municipalities to establish fire departments or use municipal resources to
support volunteer fire departments. Perrotti argues that, because Middlebury
had not established a fire department in the Town Charter pursuant to § 7‐301,
Middlebury lacked authority to hire him as an employee of that department, and
he therefore could not be a town employee as a matter of law.
Perrotti concedes that he did not raise this argument before the district
court until months after the entry of judgment. Accordingly, the argument is
subject to plain error review. United States v. Brown, 843 F.3d 74, 81 (2d Cir.
2016). “Under the plain error standard, an appellant must demonstrate that ‘(1)
there is an error; (2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellantʹs substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.’” Id. (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).
Although § 7‐301 authorizes municipalities to establish fire departments, it
does not preclude municipalities from hiring individuals for fire‐related work
pursuant to other Connecticut state laws. There are several other sources for
Middlebury’s authority to hire employees, including for fire‐related work. For
example, Conn. Gen. Stat. § 7‐148(c)(4)(B) authorizes municipalities to “[p]rovide
for fire protection, organize, maintain and regulate the persons providing fire
protection, provide the necessary apparatus for extinguishing fires and do all
other things necessary or desirable for the protection of the municipality from
fire”; and Conn. Gen. Stat. § 7‐148(c)(5)(C) authorizes municipalities to
“[p]rovide for the employment of and prescribe the salaries, compensation and
hours of employment of all officers and employees of the municipality and the
duties of such officers and employees not expressly defined by the Constitution
of the state, the general statutes, charter or special act[.]” Similarly, in Morris v.
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Congdon, 893 A.2d 413, 420 (Conn. 2006), the Connecticut Supreme Court
determined that the Board of Selectmen of a town “has authority, as a necessary
concomitant of its general authority to superintend the concerns of the town, to
create or eliminate a municipal position.” Finally, Section 601 of the Middlebury
Town Charter provides that the “Board of Selectmen shall have the power to
hire, establish the working conditions of, promote, discipline, suspend and
dismiss all persons employed by the Town, either full or part time . . .” Gov’t
App’x 1500.
Given these provisions (and the absence of any prohibition in § 7‐301),
Middlebury had authority to hire Perrotti as the Town Fire Chief. Accordingly,
Perrotti has failed to identify any legal error in the district court’s determination
that Perrotti was a town employee, much less an error that is clear or obvious.
2. Perrotti argues that the jury instruction regarding the first element of
§ 666 (whether Perrotti was an agent of Middlebury by virtue of his status as
town employee) did not adequately inform the jury as to the definition of
“employee.”
We review de novo a district court’s jury instructions. United States v.
Sheehan, 838 F.3d 109, 121 (2d Cir. 2016). “A jury instruction is erroneous if it
misleads the jury as to the correct legal standard or does not adequately inform
the jury on the law.” United States v. Roy, 783 F.3d 418, 420 (2d Cir. 2015) (per
curiam) (internal quotation marks omitted). An erroneous jury instruction will
not require a new trial, however, where the government can show that the error
was harmless. Sheehan, 838 F.3d at 121.
Perrotti argues that the jury instructions’ definition of “employee” was
erroneous because it failed to adhere to the common‐law definition of
“employee” as required by Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318 (1992). The government counters by arguing that the more expansive
definition issued to the jury was proper in light of the broad public integrity
goals that motivated Congress’ passing of § 666.
We need not resolve this dispute because we conclude that there is more
than sufficient evidence for us to determine beyond a reasonable doubt that
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Perrotti would have been convicted even had the jury been instructed with the
Darden definition of “employee.” Consequently, to the extent there was any
error, it was harmless.
At bottom, the Darden test looks to the “hiring party’s right to control the
manner and means by which the product is accomplished.” 503 U.S. at 323.
Darden identifies a number of exemplary factors that weigh on that analysis,
many of which overwhelmingly establish Perrotti’s status as an employee. For
example, Perrotti was treated as an employee for tax purposes, receiving a W‐2
for each of the relevant years. See Saleem v. Corp. Transp. Grp., Ltd., 854 F.3d
131, 141 n.22. Further, the evidence showed that the town owned all of the
instrumentalities of the fire department, controlled its budget, and provided
Perrotti with a number of tools necessary to do his job, such as a car, gasoline,
and a cell phone. In addition, Perrotti was responsible for supervising a town
employee, which would have been an odd task to assign to a non‐employee.
Perrotti’s sole response on appeal is to argue that the town at time referred
to the payments Perrotti received as a “stipend,” and that a reasonable person
would not associate a stipend with an employment relationship. The argument
is meritless. The jury convicted Perrotti under the instructions given, which by
necessity means that it concluded beyond a reasonable doubt that Perrotti’s
compensation, however else referred, constituted “wages or a salary.” And, we
have noted the non‐controversial proposition that the “term ‘employ’ commonly
means . . . ‘to provide with a job that pays wages or a salary.’” United States v.
Connolly, 552 F.3d 86, 92 (2d Cir. 2008) (quoting Merriam‐Webster’s Collegiate
Dictionary 378 (10th ed. 2000)) (finding an individual not “employed” under the
Darden factors in part because “he was not paid a salary”).
Even assuming arguendo the district court utilized in its charge an
erroneous definition of the term “employee” as used in § 666, we conclude that
the error was harmless because “it is clear beyond a reasonable doubt that a
rational jury would have found [Perrotti] guilty absent the error.” Sheehan, 838
F.3d at 121 (internal quotation marks omitted).
3. Perrotti argues that the district court erred in excluding two defense
exhibits.
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We review rulings on the admissibility of trial evidence for abuse of
discretion. United States v. Rowland, 826 F.3d 100, 114 (2d Cir. 2016). In
conducting this review, we are “mindful” of the district court’s “superior
position to assess relevancy and to weigh the probative value of evidence against
its potential for unfair prejudice.” United States v. Abu‐Jihaad, 630 F.3d 102, 131
(2d Cir. 2010). We identify an abuse of discretion “only if the ruling was
arbitrary and irrational.” Id. (internal quotation marks omitted).
Federal Rule of Evidence 401 provides that evidence is “relevant” if “it has
any tendency to make a fact more or less probable than it would be without the
evidence” and that “fact is of consequence in determining the action.” Federal
Rule of Evidence 403 provides that a “court may exclude relevant evidence if its
probative value is substantially outweighed by . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
Perrotti sought to introduce certain Middlebury Board of Selectman
minutes concerning the Town Police Chief. Perrotti misstates the record: when
the district court questioned the relevance of these minutes, defense counsel
responded, “Your Honor, that’s fine. We don’t need to introduce them.” Gov’t
App’x 890. The district court never ruled on the exhibit’s admissibility because
Perrotti waived the argument. United States v. Spruill, 808 F.3d 585, 597 (2d Cir.
2015) (explaining that waiver results “from a defendant’s intentional decision not
to assert a right”).
Perrotti also sought to introduce proposed 2007 revisions to the
Middlebury Town Charter, which were rejected by the electorate and which
would have created a permanent fire commission with control over the MVFD
Fire Chief. The district court acted well within its discretion in deciding that the
39 pages of proposed revisions were irrelevant under Rule 401: the failed 2007
proposal did not make it either “more or less probable” that Perrotti was a town
employee in 2011, 2012, and 2013. The district court similarly acted within its
discretion in determining under Rule 403 that any “potential probative value”
was “substantially outweighed” by the burden of reviewing the lengthy
documents and the confusion it would cause the jury. Gov’t App’x 896‐97. The
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document would invite speculation as to why the referendum failed and how the
failure to create a fire commission in 2007 informed the law in 2011, 2012, and
2013. The district court did not act arbitrarily or irrationally in foreclosing such
jury speculation, especially considering that the district court permitted Perrotti
to “make the arguments [he] wishes to make about what . . . the law was in 2011,
2012, 2013, [and] what the Charter stated.” Id. Accordingly, the district court
did not abuse its discretion in excluding the proposed exhibit.
4. Perrotti argues that his use of “disguised billing,” which concealed his
involvement in a series of transactions with Middlebury, was not within the
common law definition of fraud “because the Town knew of his participation,
did not proffer a conflict of interest objection and paid the invoices for work
done,” and because his services “provided value added.” Br. of Appellant 33‐34.
Perrotti therefore contends that the Government cannot meet the statutory
threshold of $5,000 in 2012 and 2013, as required by 18 U.S.C. § 666(a)(1)(A)(i).
There were three instances of disguised billing: Perrotti installed gutter
heating at one of the Town’s firehouses and arranged for an invoice to be
submitted to the Town in the name of Astro Electric, Inc., thereafter obtaining
$700 for the work he performed; Perrotti received $2,000 from the Fire
Department for providing instructional services and arranged for the
Department to bill the Town without disclosing his involvement; and Perrotti
performed certain rooftop electrical work at a Town firehouse, billing the Fire
Department for $1,450 and then arranging for the Department to generate an
invoice to the Town that omitted his company’s involvement. United States v.
Perrotti, 185 F. Supp. 3d 276, 281 (D. Conn. 2015).
Perrotti’s claim fails because the Government can reach the $5,000
threshold for both 2012 and 2013 without counting the amounts at issue in the
disguised billing. The 2012 fraudulent billings also included payments of $2,735
to Andrew Ubaldo and $8,492 for electrical parts. United States v. Perrotti, 185 F.
Supp. 3d 276, 282 (D. Conn. 2015). And the 2013 fraudulent billings included
payments of $248 to Ubaldo, $3,100 to Max Biggins, and $4,644 for electrical
parts. Id. Accordingly, sufficient evidence supports the convictions, and we
need not (and do not) decide whether Perrotti’s use of disguised billing fell
within the common law definition of fraud.
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We have considered Perrotti’s remaining arguments and conclude that
they are without any merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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