Sheldon Silver leaves federal court Tuesday after he was sentenced to 12 years in prison. At right is attorney Steven Molo.
Sheldon Silver leaves federal court Tuesday after he was sentenced to 12 years in prison. At right is attorney Steven Molo. (NYLJ/Rick Kopstein)

For federal prosecutors, the ruling by the U.S. Second Circuit Court of Appeals to throw out the conviction of former New York state Assembly Speaker Sheldon Silver on Thursday highlights the challenges of winning public corruption cases in the post-McDonnell era.

The U.S. Supreme Court’s decision in McDonnell v. United States, No. 15-474, which was handed down after Silver’s conviction in November 2015 of four counts of theft of honest services, two counts of Hobbs Act extortion and money laundering, narrowed the definition of what can be considered an “official act” under the federal bribery statute.

The Second Circuit’s decision to overturn Silver’s conviction—which centered on an overbroad jury instruction from Southern District Judge Valerie Caproni—may also shake up the prosecution of former state Senate Majority Leader Dean Skelos, who is awaiting a ruling from the federal appeals court in his corruption case.

Skelos was convicted in December 2015 on charges that he had used his position to obtain legislative favors for three companies in exchange for payments and opportunities for his son, Adam Skelos.

The ruling has already emboldened attorneys for Dean Skelos, who like Silver, was once one of the “Three Men In A Room”—along with the governor—that had the final say on New York’s major policy issues.

On Thursday afternoon, Alexandra Shapiro of Shapiro Arato, who in May presented oral arguments for Dean Skelos in his appeal to the Second Circuit, filed a Rule 28 letter with the court stating that the ruling in Silver requires vacatur of her client’s conviction.

The jury instruction on “official act” in the Skeloses’ case was “nearly identical” to the one used in Silver’s case, and thus is considered “fatally overbroad” under the McDonnell standard.

The Skeloses were convicted before Southern District Judge Kimba Wood on eight counts relating to three separate schemes that included bribery, extortion and conspiracy to commit honest services fraud.

Like Silver, the Skeloses remain free on bail while appealing their conviction.

Wood, in August, said that the lawyers for Skelos and his son had raised “substantial questions” as to whether the jury instructions had been erroneous given the McDonnell ruling.

Richard Hartunian, who stepped down as U.S. attorney for the Northern District late last week, said the court’s ruling shows there is a “rapidly changing legal landscape” in which it has become increasingly difficult to maintain public corruption convictions.

“With the Supreme Court repeatedly limiting the scope of federal corruption law in recent years, we will continue to see outcomes like this,” Hartunian said in an email. “Unless Congress acts, the line between public service and private benefit will continue to blur.”

Hartunian knows firsthand the difficulty of sticking politicians with corruption charges: While he was in office, he brought charges against former state Senate Majority Leader Joe Bruno. After a nine-year probe, Bruno was acquitted in 2014.

Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, also said that she sees the ruling overturning Silver’s conviction impacting the Skelos case. She said that, given the “overwhelming evidence” presented in the case of the official acts Silver conducted that would still be considered official acts post-McDonnell, a jury wouldn’t likely be sidetracked by acts that no longer qualify as such.

“If I were the Skelos prosecutors, I would be worried about how the circuit would interpret that case,” Rodgers said.

As for the prosecutors in Silver, she said the government may have success in a second trial by taking out evidence that may fall short of the higher standard that the Supreme Court set for bribery, such as Silver’s effort to help the son of Dr. Robert Taub—a mesothelioma doctor who referred patients to Weitz & Luxenberg, where Silver was of counsel—get a job with a nonprofit.

“Then you’ll have a nice, clean, McDonnell-compliant case,” Rodgers said.

Joshua Colangelo-Bryan, a white-collar defense attorney who is of counsel to Dorsey & Whitney, also said federal prosecutors will likely need to bring a leaner case against Silver the second time around, as it now has a “narrower path” to pursue against Silver.

“Clearly the Supreme Court was concerned about the criminalization of everyday politics,” Colangelo-Bryan said. “With that as a backdrop, prosecutors may well feel that they need to be more careful when they’re trying to bring cases based on longstanding, constituent-related activities.”

In September, U.S. Attorney Preet Bharara of the Southern District of New York charged nine defendants, including two of Gov. Andrew Cuomo’s top aides and Alain Kaloyeros, who had been repeatedly lauded by the governor for developing the SUNY Polytechnic Institute.

Assembly Speaker Carl Heastie, who replaced Silver as the most powerful man in the chamber, said today’s decision is part of the judicial process.

“As I have said, we must respect the judicial process,” the Bronx Democrat said in a statement. “It is a pillar of our democracy. Today’s decision is part of that process.”

While in Buffalo Thursday, Cuomo told reporters to wait and see what happens.

“I understand the legal complexity, so let them litigate the case and see where they end up,” Cuomo said. “My point is, the situation isn’t resolved. In litigation you often have a number of steps. Lower court finds this, there’s an appeal, it gets overturned. So before we get a dissection and analysis of legal theories let it get litigated and see where it ends up.”