Sheldon Silver (NYLJ/Rick Kopstein)
Former state Assembly Speaker Sheldon Silver’s 2015 conviction on corruption charges was tossed out by a federal appeals court Thursday morning, and the U.S. Attorney for the Southern District of New York quickly announced that his office would retry the case.
A panel of the U.S. Court of Appeals for the Second Circuit ruled that the evidence presented in Silver’s high-profile prosecution was sufficient to convict him of money laundering, Hobbs Act extortion and honest services fraud.
However, citing a U.S. Supreme Court decision involving former Virginia Gov. Bob McDonnell, a Republican, McDonnell v. United States, 15-474, which narrowed the definition of bribery, the panel said Southern District Judge Valerie Caproni erred by not properly instructing the jury on the charges of honest services fraud and extortion.
“We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José Cabranes wrote for the panel. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”
Cabranes was joined on the decision by Judge Richard Wesley and U.S. District Senior Judge William Sessions III of the District of Vermont, sitting by designation.
Acting Southern District U.S. Attorney Joon Kim said his office was disappointed by the ruling, but noted that the court found the evidence against Silver was sufficient, even under the “new legal standard.”
“Although this decision puts on hold the justice that New Yorkers got upon Silver’s conviction, we look forward to presenting to another jury the evidence of decades-long corruption by one of the most powerful politicians in New York state history,” Kim said. “Although it will be delayed, we do not expect justice to be denied.”
Silver, a Democrat representing the Lower East Side of Manhattan, was first elected in 1976 and ascended to speaker in 1994. He was a political institution in New York and one of the so-called “three men in the room”—which includes the governor and the state Senate majority leader—that steer the state’s major policy issues.
In January 2015, Preet Bharara, then Southern District U.S. attorney, alleged Silver used his position of power to engage in two quid pro quo schemes that netted him roughly $4 million.
Bharara on Thursday tweeted,“The evidence was strong. The Supreme Court changed the law. I expect Sheldon Silver to be retried and re-convicted.”
From 2000 to the time of his arrest, Silver, who was of counsel for Weitz & Luxenberg, a leading firm for plaintiffs in asbestos cases, received $3 million in referral fees from the firm for asbestos patients referred by Dr. Robert Taub.
In return, Silver was alleged to have provided grant funding from a state coffer under his control to support Taub’s asbestos research at New York Presbyterian and Columbia University Mesothelioma Center in 2005 and 2006.
The second scheme involved referral fees to Goldberg & Iryami for the tax appeal business of real-estate developers Glenwood Management and Witkoff Group; these referral fees allegedly were in exchange for favorable tax and rent regulation legislation in Albany, though the developers say they weren’t aware of the arrangement until 2011.
All told, Silver was charged with receiving about $835,000 in fees from Goldberg & Iryami for referring the developers.
At a charge conference, Silver’s lawyers proposed that, to prove that he committed an “official act,” the government must show the “exercise of actual governmental power, the threat to exercise such power, or pressure imposed on others to exercise actual government power.”
But Caproni sided with the government’s proposed language for jury instruction, which applied a broader standard to “official act”—that it include any action taken under “color of official authority.”
In May 2016, Silver was sentenced to 12 years in prison and, the following month, the U.S. Supreme Court handed down its ruling in McDonnell.
Cabranes said in the ruling that, while the jury instructions in Silver were erroneous under the standard established in McDonnell, and that Caproni did not make harmless error in the case, the panel “cannot ascribe fault” to Caproni or the government, as the instructions issued would have been proper pre-McDonnell.
Silver was represented by Steven Molo of MoloLamken and Joel Cohen of Stroock & Stroock & Lavan.
“We are grateful the court saw it our way and reversed the conviction on all counts,” Molo and Cohen said in a brief, emailed statement.
Assistant U.S. Attorneys Andrew Goldstein, who appeared before the panel at oral argument, James McDonald and Karl Mentzer prosecuted the case.