The U.S. Court of Appeals for the Second Circuit, again finding that jury instructions in public corruption trials after the U.S. Supreme Court’s McDonnell v. U.S. require greater clarity to sustain convictions, vacated the convictions of former New York state Senate Majority Leader Dean Skelos in a summary order issued Tuesday.
The ruling is the latest by the Manhattan appellate court to undo high-profile public corruption convictions won under former U.S. attorney Preet Bharara. Earlier this year, a panel similarly found former state Assembly speaker Sheldon Silver’s corruption conviction did not stand up under the new McDonnell scrutiny, as the panel found the intent of the jury couldn’t be deciphered given the instructions at trial.
In a statement, Shapiro Arato name attorney Alexandra Shapiro, who led Skelos’ appeal team, said the former senator was grateful for the court’s consideration.
“We believe that as events unfold it is going to become clear that this is a case that never should have been brought,” she said.
Skelos and his son Adam were convicted in 2015 of Hobbs Act conspiracy and extortion, honest services wire fraud conspiracy, and federal program bribery. On appeal, Skelos’ team argued the jury instructions, along with the sufficiency of the evidence, were deficient, leaning heavily on the McDonnell decision.
The panel of U.S. Circuit Court Judges Ralph Winter and Reena Raggi, along with U.S. District Judge Alvin Hellerstein of the Southern District of New York sitting by designation, agreed that the jury charge’s use of the term “official act” ran afoul of McDonnell‘s concerns over overly broad language that could include routine actions by elected officials.
As in Silver, the panel found that the language was not harmless, as the jury may have convicted Skelos on conduct that was, based on McDonnell, not unlawful.
“Although the government principally advanced a theory that Dean Skelos’s arrangement for or participation in certain meetings constituted circumstantial evidence of a quid pro quo for legislative votes, it also argued in the alternative that the meetings themselves satisfied the official-act requirement,” the panel noted.
It continued, quoting from the Silver decision: “When we consider the defective jury charge together with these arguments and the lack of instruction cautioning the jury that a meeting is not official action, we cannot conclude beyond a reasonable doubt ‘that a rational jury would have found the defendant[s] guilty absent the error.’”
Even as the panel vacated Skelos’ charges, it found that “the evidence is sufficient to allow a correctly charged jury to find this element proved beyond a reasonable doubt.”
In a statement, Acting U.S. Attorney Joon Kim said that, while the office is disappointed in the decision, “we look forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos and Adam Skelos’s guilt and again give the public the justice it deserves.”
“Cleaning up corruption is never easy, and that is certainly true for corruption in New York State government,” Kim said. “But we are as committed as ever to doing everything we can to keep our government honest. That is what we will do in this prosecution as well.”
Kim said the office was weighing its appeal options.