In less than a week, the U.S. Court of Appeals for the Second Circuit delivered two clear applications of the U.S. Supreme Court’s landmark public corruption case, United States v. McDonnell.
The results for two former state assemblymen could not have been more different.
While William Boyland saw his conviction upheld Monday in United States v. Boyland, 15-3118, a wholly separate panel on Thursday reversed Sheldon Silver’s conviction in United States v. Silver, 16-1615-cr, remanding it to the Southern District for a retrial.
The biggest difference for attorneys familiar with the two cases was how the attorneys in the cases handled their objections to jury instructions—something that became critical upon appeal.
“This reaffirms for the defense bar the significance of lodging objections during the course of the trial, and perhaps anticipating what the issues in the future may be in regards to particular legal issues,” Michael Bachner of Bachner & Associates said. “It looks like Mr. Silver’s team was very sensitive to those issues.”
By raising the issue of the jury instructions, MoloLamken name attorney Steven Molo and Stroock & Stroock & Lavan partner Joel Cohen preserved the issue on appeal. In doing so, the panel of Judges José Cabranes and Richard Wesley, along with Judge William Sessions III, sitting by designation from the U.S. District Court for the District of Vermont, applied a high burden on the government to prove beyond a reasonable doubt that the jury would have reached the same convictions in a post-McDonnell jury instruction world.
That was not the case in the Boyland decision, where the panel of Judges Amalya Kearse, John Walker Jr. and Peter Hall applied a lower standard due to Boyland’s trial team, led by Nancy Ennis and Peter Quijano of Quijano & Ennis, not objecting to the jury instructions in that case.
For veteran white-collar attorneys like Arshack, Hajek & Lehrman name attorney Daniel Arshack, this was a critical error.
“The takeaway, for practitioners, is if you don’t get the right instruction, you have to object,” Arshack said. “I think you would have had a very different decision, an opposite decision, in Boyland if counsel in that case would have objected to that instruction.”
For Arshack and others, the ability to anticipate the potential impact of McDonnell was a credit to Silver’s team.
“While McDonnell was ongoing, there wasn’t anybody trying an honest services case that couldn’t have been aware and wasn’t aware of the pendency of the McDonnell decision,” he said.
The decision not to object opens the door for a Section 2255 motion for Boyland, who can claim deficiency of counsel.
“It would have made the difference, and the proof that it would have made the difference, is the Silver case,” Arshack said.
The panel in the Silver case took pains to note that neither Southern District Judge Valerie Caproni nor the government prosecutors were to blame for the reversal of the decision.
Yet, for private attorney Laura Brevetti, the government wasn’t entirely blameless. She noted that prosecutors failed to ask for a jury sheet at trial, despite knowing that McDonnell was “lingering out there.” Had they, she said, some of the questions raised by the circuit about what jurors actually thought may have been answered.
“They purposefully declined to do that, wanting it to be a hodgepodge or a stew for the jury to consider,” Brevetti said.
The ability for the circuit to reach different results in its application of McDonnell also continued to signal a narrow application of the Supreme Court’s precedent going forward, attorneys said.
What this means for the next big public corruption case in the appeal of his conviction by former state Senate majority leader Dean Skelos and his son is that there’s no pattern on which to rely.
“With Skelos, the aspect of his co-defendant, the fact that there was an actual benefit that was on trial right next to him, I think it’s pretty significantly different than Silver,” said Peter Brill of the Brill Legal Group.