A federal appeals court in Manhattan on Thursday overturned the 2015 corruption conviction of former Assembly speaker Sheldon Silver, but prosecutors quickly signaled that they would seek to re-try the case against the once powerful Albany powerbroker.
The 2d U.S. Circuit Court of Appeals found that there was sufficient evidence to convict the veteran legislator in two corruption schemes, but jury instructions didn’t comply with a new Supreme Court decision narrowing the type of acts required of public officials in a quid-pro-quo bribery scheme to formal exercises of government power.
“The jury may have convicted Silver for conduct that is not unlawful, and a properly instructed jury might have reached a different conclusion,” said Judge Jose Cabranes, writing for a unanimous three-judge panel.
Silver, 73, of Manhattan, was convicted in 2015 of “honest services fraud” and other charges for helping real estate developers and a mesothelioma researcher who funneled $4 million in legal referral fees to him. His 12-year prison sentence was stayed pending the outcome of the appeal.
The conviction was one of the most touted victories of former U.S. Attorney Preet Bharara’s anti-corruption campaign, but the outcome was known to be in doubt because of the Supreme Court decision in a case involving former Virginia Gov. Bob McDonnell, which followed Silver’s trial.
Acting U.S. Attorney Joon Kim said he was confident the result would be the same at a planned re-trial on Silver’s “decades long corruption” in which the jury gets correct instructions. “Although it will be delayed, we do not expect justice to be denied,” Kim said.
Silver’s lawyers, in a brief statement, said, “We are grateful the court saw it our way and reversed the conviction on all counts.”
Former state Senate leader Dean Skelos’ pending appeal of his 2015 conviction relies on the same grounds as Silver. While it was heard by a different 2d Circuit panel and the facts of his case were different, the Silver result appeared to be a promising sign for him. His lawyers had no comment.
At Silver’s trial jurors were told they could convict based on “any action under color of official authority” by Silver, but the 2d Circuit said the Supreme Court ruling required a “formal exercise of government power,” rather than lesser acts like just making a phone call or having a meeting.
The trial included both proof of acts that clearly met that standard – pushing $500,000 in legislative grants for the cancer researcher, and backing real estate legislation for the developers – and lesser favors, like trying to get the researcher’s child a job, helping get permits for a charity race and meeting with lobbyists.
The 2d Circuit said it’s now impossible to tell whether jurors relied on acts that no longer qualify at all, and whether they would reach the same conclusions with proper instructions.
“We recognize that many would view the facts adduced at Silver’s trial with distaste,” the court said. “The question presented to us, however, is …whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty.”
Legal experts said the government can win a retrial, but its task will be more difficult. “They’re going to have to thread a narrower needle,” said Kelly Kramer, a Washington defense lawyer.
The court, for example, declared that the meeting with real estate lobbyists cannot still qualify as an official act, and Silver’s use of a government letterhead can’t serve by itself as proof of an official act.
The decision, said Albany Law School Prof. Vin Bonventre, will clear away underbrush. “The prosecutors should not be permitted to raise all kinds of conduct that we now know is not criminal,” he said. “There’s not going to be this back noise of how corrupt and sleazy he is.”
The scheme involving mesothelioma researcher Dr. Robert Taub could be particularly tricky, experts said, because the 2d Circuit noted that the central allegation – that Silver backed grants in return for legal referrals – occurred before the 2010 statute of limitations cutoff.
Unless prosecutors can show that scheme continued for years after the grants stopped, the panel said, they must rely three post-2010 events – a legislative proclamation for Taub, help getting permits for a charity race, and a job reference for the Taub’s son. The first may be “de minimis,” the court said, and the others may not even be official acts.
“The government will have to argue that acts that are less clearly official and more informal in nature constitute official conduct,” said Josh Colangelo-Bryan, a Manhattan white-collar defense lawyer.