Silver Skates After Appeals Court Finds Jury Instruction Flaw | News of the Week


A Federal appeals court July 13 overturned the 2015 corruption conviction of former State Assembly Speaker Sheldon Silver, citing a U.S. Supreme Court ruling last year that narrowed the definition of political corruption and could have an impact in other cases of official wrongdoing in New York State and elsewhere.

A three-judge panel from the Second U.S. Circuit Court of Appeals unanimously rejected Mr. Silver’s contention that the evidence presented by prosecutors under then-U.S. Attorney Preet Bharara was not sufficient to justify the jury’s verdict that he had broken the law by directing state funds and otherwise using his influence in return for payments totaling nearly $4 million in referral fees from law firms.

Line Moved on Instructions

However, it agreed that a Supreme Court ruling issued after the 73-year-old politician, who had been Speaker for 21 years, was convicted and sentenced, made the instructions given to his jury invalid although they were proper when given.

“It is not clear beyond a reasonable doubt that a rational jury would have reach­ed the same conclusion if properly instructed, as is required by law for a verdict to stand,” the opinion by the three judges said.

Acting U.S. Attorney Joon H. Kim, who got that job after President Trump fired Mr. Bharara in March, said he would retry Mr. Silver.

The Supreme Court decision came in the case of former Virginia Gov. Bob McDonnell, who was convicted of taking bribes from a vitamin manufacturer who wanted the state university system to test his products. In his appeal, Mr. McDonnell argued that the university never did so and that the manufacturer did not receive any benefit in return for the more-than $135,000 in gifts, loans and travel expenses he gave the McDonnell family.

The Supreme Court agreed, overturning the conviction. “To qualify as an ‘official act,’ the public official must make a decision to take an action on that question or matter, or agree to do so,” according to SCOTUSblog, an online publication of the court. “Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of ‘official act.’”

Defense lawyers saw the McDonnell decision as an attempt to rein in overuse by prosecutors who were liberally interpreting vaguely-worded anti-corruption statutes. Essentially, the court said that some political activity, such as making promises that were never fulfilled and setting up meetings that went nowhere, may be distasteful but is not corrupt.

The decision was considered a ray of hope for convicted politicians charged with or convicted of corruption, including Sen. Robert Menendez (D-N.J.), former Illinois Gov. Rod Blagojevich and Mr. Silver’s counterpart in the State Senate, former Majority Leader Dean Skelos.

Mr. Skelos was found guilty in December 2015 along with his son, Adam, of exerting his influence in return for payments and a job given to Adam. That verdict came in a separate trial within two weeks of Mr. Silver’s. Mr. Skelos has also filed an appeal citing the McDonnell case.

But a decision three days before the Silver ruling by another three-judge panel rejecting the appeal of former Assemblyman William Boyland Jr. indicated that the McDonnell decision might not be the get-out-of-jail-free card for wayward pols that their lawyers would like.

Mr. Boyland was convicted in 2014 of taking bribes to gain approvals for a carnival and to pave the way for favorable actions for real-estate developers, as well as de­frauding the state by putting in for expense reimbursements when he wasn’t in Albany. He was sentenced to 14 years behind bars.

He argued that the instructions given to his jury were improper under the McDonnell decision. But in his case, the appeals panel found that while the jury instructions were indeed faulty, his actions constituted “formal exercise of governmental power…Boyland agreed to ensure that favorable governmental decisions would be made, whether for licensing, work contracts, zoning or funding.”

“They are reading McDonnell strictly and narrowly for what it stands for, and are not allowing cases that are factually different to use McDonnell to get otherwise-legally-just verdicts vacated,” James McGovern, former Chief of the Criminal Division for the U.S. Attorney’s Office in Brooklyn, told the Wall Street Journal after the Boyland decision.

Mr. Boyland’s attorney said a further appeal was likely.

In confirming that his office would take another run at Mr. Silver, Mr. Kim said, “Although finding that the Supreme Court’s McDonnell decision issued after Silver’s conviction required a different legal instruction to the jury, the Second Circuit also held that the evidence presented at the trial was sufficient to prove all the crimes charged against Silver, even under the new legal standard…Although it will be delayed, we do not expect justice to be denied.”

Mr. Bharara, who was the state’s pre-eminent fighter against political corruption until Mr. Trump reconsidered an offer to allow him to stay on, tweeted, “The evidence was strong. The Su­preme Court changed the law. I expect Sheldon Silver to be retried and re-convicted.”

But Steven F. Molo, one of Mr. Silver’s attorneys, said, “We are grateful the court saw it our way and reversed the conviction on all counts.”

In his appeal, Mr. Silver challenged U.S. District Judge Valerie E. Caproni’s instruction to the jury defining an official act as “any action taken or to be taken under color of official authority” as erroneous under the McDonnell decision.

The language was close to that suggested by prosecutors. Judge Caproni rejected an alternate, more-limiting instruction offered by Mr. Silver’s lawyers that would have defined an official act as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity.”

The judges’ opinion said, “We cannot conclude, beyond a reasonable doubt, that a rational jury would have found Silver guilty if it had been properly instructed on the definition of an official act.”

The decision reprieves Mr. Silver from a 12-year prison sentence—which he never began serving—and payments totaling $7 million that were designed to strip him of the money he gained illicitly, an additional $1 million he gained in investing it, and his $6,002-a-month pension from 38 years of representing his Lower East Side district in Albany.

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