Sheldon Silver leaves federal court on May 3, 2016. Photo: Rick Kopstein.

The U.S. Supreme Court denied former New York Assembly Speaker Sheldon Silver’s petition for writ of certiorari Tuesday, removing a potential complication for government prosecutors currently pursuing a retrial of the formerly powerful state elected official.

Silver’s petition was filed with the court in October, shortly after the U.S. Court of Appeals for the Second Circuit vacated his corruption conviction and remanded the case back to the district court for further proceedings.

Silver’s conviction by jury came in the wake of the Supreme Court’s 2016 decision in McDonnell v. U.S., which narrowed the ways prosecutors could bring bribery charges against public officials for performing “official acts” in exchange for a clear benefit. Since it was unclear whether the jury instructions provided by the district would have harmlessly led to the same conclusion if McDonnell’s correcting language were incorporated, the appellate court vacated Silver’s conviction.

Silver was arrested in January 2015. He was convicted on multiple counts of corruption, including honest services fraud and money laundering in November 2015. He has never spent a day behind bars. Most recently, he was allowed to remain free pending appeal from the district court.

Despite the victory for the former elected official—and the ding to former U.S. attorney Preet Bharara’s hard-charging public corruption reputation—Silver’s attorneys sought leave from the high court to review the money laundering aspects of Silver’s conviction.

On appeal, Silver’s attorneys argued that, on top of the failure of the jury instructions to incorporate language sufficient post-McDonnell, the government failed to distinguish between tainted money and legitimate funds in its money laundering charge. Silver’s team, relying on decisions in the Fifth and Ninth circuits which require the government to trace allegedly illicit funds to prove money laundering, argued that prosecutors failed to prove the charge.

The appellate court, pointing to the “majority view” it shared with its sister circuits, declined to adopt the “minority view” shared by the Ninth and Fifth Circuits proposed by Silver. The fungibility of money, once funds are commingled, made the requirement unnecessary to prove money laundering, the appellate court stated in dismissing Silver’s argument. The appellate court did so despite dismissing the money laundering conviction, as the required illegal acts associated with the laundered funds were no longer present.

This issue was the one presented to the Supreme Court by Silver in October 2017. Silver argued that there remained a circuit split over the issue of securing money laundering convictions, and asked the court to grant his writ to “address [the] important legal question.”

On Tuesday, the high court declined.

 

“We are disappointed that the Supreme Court decided not to review the case at this time. We intend to move forward and obtain a great result for our client,” Silver’s attorneys, MoloLamken name attorney Steven Molo and Stroock & Stroock & Lavan of counsel Joel Cohen, said in a statement.

 

Meanwhile, the U.S. Attorney’s Office for the Southern District of New York has continued to push forward on its promised retrial for Silver following the vacating of his conviction.

 

The U.S. Attorney’s Office for the Southern District of New York declined to comment. The office has continued forward with retrial proceedings against Silver. A new trial is scheduled to begin this spring.