Jury selection is set to begin in the second bribery trial of former New York State Assembly Speaker Sheldon Silver, as prosecutors are expected to present much of the same elements of a case that in 2015 won them a conviction on more than seven counts.
But this time, the pressure will be on the government—which of late has had a mixed record on prosecuting public corruption—to adjust its case to adhere to a new, more stringent standard for instructing juries on what counts as an “official act” under federal bribery statutes.
Silver, formerly a political institution in New York who represented parts of Lower Manhattan as a Democrat for almost four decades until his resignation in February 2015, was convicted in November 2015 of four counts of honest services fraud, two counts of extortion and money laundering.
Silver allegedly ran two kickback schemes that netted him some $5 million in referral fees.
In the first alleged scheme, Silver is accused of diverting state grant money to Robert Taub, a Columbia University oncologist who referred patients to personal injury boutique Weitz & Luxenberg, where Silver was of counsel. Silver allegedly received $3 million in legal referral fees from the scheme.
In the second alleged scheme, Silver referred developer Glenwood Management to real estate law firm Goldberg & Iryami for a tax-rate appeal, and is accused of returning the favor by pushing through favorable tax and rent regulation legislation in Albany.
U.S. District Judge Valerie Caproni of the Southern District of New York, who presided over the first trial, will handle the retrial, which is set to begin on April 30 and is expected to last four to six weeks.
The do-over in the corruption case against Silver, who has pleaded not guilty to the charges against him, will likely include much of the same evidence and witnesses presented in the first trial; Taub, who testified in the first trial under a nonprosecution agreement, is again expected to testify as a key witness for the government, but prosecutors told Caproni that Taub is suffering from health issues and may require surgery, and thus the start of the trial was delayed until April 30.
Silver has switched out his defense team for the second go-round, replacing Joel Cohen of Stroock & Stroock & Lavan and Steven Molo of MoloLamken, who represented him in his first trial and in his successful appeal, with an Allen & Overy team led by partner Michael Feldberg.
Silver’s defense team also includes Allen & Overy attorneys Andrew Rhys Davies, Michael Westfal and Rebecca Ann Naeder.
Assistant U.S. Attorneys Tatiana Martins, Daniel Richenthal and Damian Williams are prosecuting the case.
While the government was victorious in Silver’s first trial, in 2016 the U.S. Supreme Court issued a ruling that imposed a tougher standard on prosecuting elected officials for alleged corruption, which the U.S. Court of Appeals for the Second Circuit cited in its decision last year to throw out Silver’s conviction.
The high court found that the jury instructions presented in the corruption trial for former Virginia Gov. Bob McDonnell provided an expansive definition of what constitutes an official act—setting up meetings, hosting events or calling other elected officials doesn’t count, the high court said—and threw out his honest services fraud and Hobbs Act extortion convictions.
The U.S. Supreme Court’s definition gave a glimmer of hope to defendants accused of public corruption. Among the corruption convictions upset was that for former New York Senate Majority Leader Dean Skelos, R-Nassau, who was accused of using the powers of his office to secure no-show jobs for his son, Adam Skelos.
Skelos is expected to be retried on June 18. In January, the U.S. Supreme Court declined to take up Silver’s case for review.
While the onus will be on the prosecution in Silver’s second trial to focus its case on conduct that clears the McDonnell standard, the Second Circuit said in its ruling that there was sufficient evidence in the first round for a conviction, said Joshua Colangelo-Bryan, of counsel to Dorsey & Whitney, who is not involved with the Silver case but who is also representing a former New York state politician who fell from a high post: former state Sen. John Sampson, D-Brooklyn, who for three years was majority leader, and who was sentenced to prison last year for obstruction and lying to the FBI regarding an alleged foreclosure sale embezzlement scheme.
Daniel R. Alonso, the managing director of Exiger and a former prosecutor who has worked in the Manhattan District Attorney’s Office and the U.S. Attorney’s Office for the Eastern District of New York, said it’s relatively uncommon for the prosecution to lose on retrial.
What may also put the wind at the government’s back in this case, Alonso said, is the fact that prosecutors generally already know which witnesses will take the stand and how they will come across.
“Once you do that, it’s like the greatest focus group in the world,” Alonso said.
But on the other hand, Alonso said, Silver’s defense team may be given small advantages in that they will already have discovery materials produced for the first trial—and thus they won’t be left waiting until the eve of trial for discovery—and will have access to the transcripts of sworn testimony from the first trial.
“If the witness deviates from prior statements you can expect a good defense attorney to pounce on that witness,” he said. Alonso is not involved with the case.
Colangelo-Bryan said that while a tighter definition of what qualifies as an official act may take some evidence off the table for the prosecution, he does not see the new standard as a silver bullet for defendants—prosecutors have had time to adjust their approaches to corruption cases since the U.S. Supreme Court announced its decision in McDonnell. Ultimately, he said, each case boils down to specific facts.
“The defense is not going to be able to rely solely on an argument that there were no official acts but instead focus on other things, such as whether or not there was an illegal quid pro quo,” he said.