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12 correctly conveyed” this test). Moreover, the jury was not told that it was necessary to find that “relevant government personnel” “acquiesce[d]” in Percoco’s exercise of government functions.

In short, the jury instructions are substantially different from either of the Government’s new theories, and the Second Circuit—which treated even the language the Government now disclaims in Margiotta as good law—did not affirm on either of these theories. We decline to do so here.

For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.