Dean Skelos and Adam Skelos leave federal court after their guilty verdicts in 2015.
Dean Skelos and Adam Skelos leave federal court after their guilty verdicts in 2015. (NYLJ/Rick Kopstein)

At oral arguments Thursday for former New York state Sen. Dean Skelos’ appeal against his 2015 bribery conviction, a prosecutor admitted that the government “went too far” by stating at trial that arranging a meeting between a state department and a company who hired his son constituted an “official act” worthy of a conviction.

Skelos, who was Republican majority leader and one of the so-called “Three Men in a Room” that wielded ultimate authority over the state’s key policy decisions, was convicted before Southern District Judge Kimba Wood alongside his son Adam Skelos of eight counts relating to three separate schemes, which included bribery, extortion and conspiracy to commit honest services fraud.

Dean Skelos, who represented parts of Nassau County in the state Senate for 30 years, was sentenced to five years in prison and Adam Skelos was sentenced to six-and-a-half years.

The schemes involved three companies—real estate powerhouse Glenwood Management, AbTech Industries and Physicians’ Reciprocal Insurers—for which Dean Skelos helped to obtain legislative favors in exchange for payments and job opportunities for Adam Skelos, including a no-show job.

But the Skeloses’ convictions came just before the U.S. Supreme Court’s decision in McDonnell v. United States, No. 15-474, in which the high court tossed out a bribery conviction for former Virginia Gov. Robert McDonnell on the grounds that an “official act” does not include setting up a meeting, hosting an event or calling another public official.

The specter of McDonnell hung over oral arguments for the Skeloses’ appeal before a panel of the U.S. Court of Appeals for the Second Circuit, in which many of the questions concerned a meeting that Dean Skelos arranged between AbTech, an Arizona-based environmental company, which was awarded a $12 million stormwater contract with Nassau County of which Adam Skelos received a 4 percent cut, and the New York State Department of Health.

In its summation at trial, government lawyers said the meeting was “devastating, devastating” evidence of an “official act” by Dean Skelos, but conceded after McDonnell that the meeting didn’t meet the new definition of official act.

In response to a question from Judge Reena Raggi as to why there shouldn’t be a new trial in the case, Assistant U.S. Attorney Thomas McKay, who presented arguments for the government, said there was “overwhelming evidence” aside from the Department of Health meeting to convict Skelos, especially an emailed threat to AbTech that its efforts to win the stormwater contract would be thwarted unless Adam Skelos received a raise.

“You can find beyond a reasonable doubt that the jury convicted based on quid pro quo actions,” McKay said.

In its appellate brief, the government argues that any error in the instructions to the trial jury was “harmless.”

In arguments on behalf of Dean Skelos, Alexandra Shapiro of Shapiro Arato parried with Southern District Judge Alvin Hellerstein, who sat on the panel by designation, as to whether the trial jury focused on the portions of the summation regarding meetings when deciding to convict.

Considering the government’s summation “as a whole,” Raggi said it is “inconceivable” that jurors would decide to convict based on meetings alone, and Hellerstein said the jury could infer that an official action was at play if benefits for Adam Skelos translated to legislative action.

“It was vital in each of these schemes that there be a specific piece of legislation,” Hellerstein said. “Without that, there would be no benefit for the taxpayer.”

Shapiro said the government “strained to make a connection” between Dean Skelos’ votes and favors for his son.

“We don’t know what the jury inferred about legislation because the jury wasn’t asked to answer the right question,” Shapiro said.

The panel, which also included Second Circuit Judge Ralph Winter, asked relatively few questions of Robert Culp of the Law Office of Robert A. Culp, who presented arguments on behalf of Adam Skelos.

Culp said that, assuming for the sake of argument that his client’s father took part in bribery schemes, there was no evidence that his client was in on the schemes.

Raggi asked how Adam Skelos obtained a no-show job, to which Culp replied: “Maybe because his father is a senator.”

“Right,” Raggi shot back.