Former Assembly Speaker Sheldon Silver, convicted on federal corruption charges for the second time last year, will have an appeal of that decision heard by a federal appellate court next month, recent filings show.
Attorneys for Silver will have 10 minutes to make their case on March 13 before the U.S. Court of Appeals for the Second Circuit on why a federal jury erred when it found him guilty of accepting millions of dollars in kickbacks last year.
Silver was sentenced to seven years in federal prison in July over the scheme. Prosecutors had alleged that he used his position as speaker of the Assembly, the highest-ranking position in the chamber, to benefit two law firms in exchange for nearly $4 million in referral fees.
Meir Feder, a partner with Jones Day, will represent Silver before the Second Circuit. Silver was originally represented during his trial at the U.S. District Court for the Southern District of New York by Allen & Overy partner Michael Feldberg.
Federal prosecutors will also have 10 minutes to argue why Silver’s conviction should stand. Feder argued in a brief with the Second Circuit in November that the appellate court should either acquit Silver on all charges or grant him another trial.
It would be the third time the former lawmaker was tried in the Southern District on the corruption charges. His first conviction, in 2016, was thrown out after the U.S. Supreme Court ruling in McDonnell v. United States narrowed the definition of federal bribery statutes.
Silver was convicted again last year, but Feder argued in his brief that the jury was given the wrong instructions by U.S. District Judge Valerie Caproni. Prosecutors had to establish a quid pro quo arrangement where both Silver and the other parties involved were aware of the scheme and agreed to mutually benefit from it, Feder argued. The jury was, instead, told they could find Silver guilty even if such an agreement wasn’t established, he claimed.
“Hamstrung by these instructions (and the knowledge that any reference to an agreement element in summation would draw a sustained objection) Mr. Silver was prevented from arguing to the jury that he did not enter any agreement with Dr. Taub or the developers to exchange benefits for official acts,” Feder wrote.
Feder said the other parties testified at trial that Silver never asked them to agree to a scheme in which he would use them to advance his own financial interests. That missing element should reverse his conviction, Feder argued.
Federal prosecutors disagreed with that interpretation in their own brief with the Second Circuit, arguing that a quid pro quo element could be satisfied by showing that Silver knew he stood to benefit from the scheme, regardless of whether the alleged bribe payers understood his intent.
“The law is likewise clear that the quid pro quo element may be satisfied by proof of the defendant’s understanding of the purpose for which the payment is being offered or made,” prosecutors wrote. “In demanding proof of a meeting of minds between the bribe payor and payee, and suggesting that a payee who accepts a bribe believing it to be a bribe has committed no crime unless his payor subjectively intends a bribe, Silver goes too far—well beyond what the relevant statutory text and case law will support.”
Silver was alleged to have used his position in the Legislature to benefit two firms while accepting millions in kickbacks for the work.
Weitz & Luxenberg, a personal injury firm in Manhattan, paid Silver referral fees for asbestos-induced mesothelioma cancer cases. Silver allegedly convinced Dr. Robert Taub, formerly of Columbia University, to refer his cancer patients to the firm in exchange for state research funding. The firm paid Silver for those referrals.
Goldberg & Iryami, a property tax law firm, paid Silver fees for referring two real estate companies to the firm. Silver meanwhile allegedly urged lawmakers to pass laws that would benefit those developers.
Silver’s appeal will be heard on March 13 at 10 a.m. by the Second Circuit at the Thurgood Marshall Courthouse in Manhattan.