Sheldon Silver
Sheldon Silver (AP/Seth Wenig)

Whether the political corruption conviction of former Democratic power Sheldon Silver should stand took front and center Thursday as a federal appeals court explored what it means when a politician takes “official action” as part of a quid pro quo.

For nearly 90 minutes, the U.S. Court of Appeals for the Second Circuit peppered defense lawyer Steven Molo and Assistant U.S. Attorney Andrew Goldstein with questions about Silver, convicted in 2015 of trading grant money and legislation in exchange for law firm referral fees.

Molo, of Molo Lamken, said no one knows whether the jury convicted Silver for taking official action as it was recently redefined by the U.S. Supreme Court in McDonnell v. United States, 15-474. But he said Southern District Judge Valerie Caproni gave an “overly broad” definition to the jury.

“We don’t know what the jury found,” Molo told Judges Jose Cabranes and Richard Wesley and U.S. District Judge William Sessions of the District of Vermont, sitting by designation.

Molo said the prosecution made a strategic decision to keep it vague and not to ask for a special verdict form—a form that would have clarified on which acts the jury was convicting.

“They [prosecutors] threw everything up against the wall, and this is what we’re left with,” he said.

But Goldstein, who was also on the trial team, told the judges the “evidence absolutely establishes that Sheldon Silver abused his immense power” and took “clear official action” by issuing grants and a passing legislation “only to benefit the people who were paying him.”

Silver was convicted largely of two schemes. One was using Assembly health care grants to fund the mesothelioma research of Dr. Robert Taub at Columbia in return for millions in referral fees for Taub sending patients to Silver’s firm, Weitz & Luxenberg.

The second was for repeatedly passing legislation to benefit a real estate developer in return for referral fees to a tax certiorari firm.

The grants to Taub were made in 2005 and 2006 and, in 2007, Silver met with Taub and said, “can’t do this anymore,” so a recurring issue for the judges was the statute of limitations and what weight to put on Silver’s continued favors to Taub after 2010. Silver was indicted, and tried, in 2015.

The favors included a job for Taub’s son at a local charity and a proclamation on the floor of the Assembly praising the doctor, which Molo said fell far short of “official action.”

Wesley said the grants in return for referral of mesothelioma patients seemed like a “classic” quid pro quo but the problem was the five-year statute of limitations. The favors Silver did for Taub after the five years, he asked Goldstein, “Do these have to be official acts or just indices of the scheme?”

“They can be just indices of the scheme,” Goldstein answered, saying the point was, “At every turn, Sheldon Silver would do things for Dr. Taub, for a price, and each one was a use of his power.”

Sessions also wanted to know how the government proved official action took place within the five-year period and, “How do you try to figure out what government action the jury relied on, or is it just speculative?”

At stake for Silver is a 12-year prison term ordered by Caproni after the jury found him guilty of theft of honest serves, Hobbs Act extortion and money laundering.

Molo strove to show how the conviction was invalid under the Supreme Court’s recent decision vacating the Hobbs Act and theft of honest services conviction of former Virginia Gov. Bob McDonnell.

McDonnell, Molo said, “expressly holds that a meeting is not enough,” and Caproni’s jury instructions were invalid under that case.

The burden was on the government, Molo said, to prove beyond a reasonable doubt “that there was some quid pro quo and not some courtesy.”

“Dr. Taub didn’t say there was a quid pro quo,” Molo noted.