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What you need to know for 07/21/2017

Sheldon Silver's 2015 corruption conviction overturned

Sheldon Silver's 2015 corruption conviction overturned

Federal prosecutors quickly vow to retry case
Sheldon Silver's 2015 corruption conviction overturned
Sheldon Silver, the former speaker of the state Assembly, in May 2016 after he was sentenced to 12 years in prison.
Photographer: Gregg Vigliotti/The New York Times

NEW YORK — A federal appeals court on Thursday overturned the 2015 corruption conviction of Sheldon Silver, once the powerful speaker of the New York Assembly, saying the judge’s jury instructions were in error in light of a U.S. Supreme Court decision that has since narrowed the legal definition of corruption.

Silver was convicted on charges that he had obtained nearly $4 million in illicit payments in return for taking a series of official actions that benefited others. But in the jury instructions, the judge’s explanation of an official action was too broad, the appeals court found, because it swept in some conduct that the Supreme Court’s decision would now exclude.

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Federal prosecutors quickly vowed to retry the case, noting that the appeals court said that the evidence against Silver was legally sufficient to support a conviction.

The ruling, by a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan, was nonetheless a startling development that buttressed Silver’s reputation as a man whose resilience and influence in New York once seemed boundless.

The panel cited the Supreme Court’s 2016 decision involving Bob McDonnell, a former Republican governor of Virginia, that came seven months after Silver was convicted. McDonnell had arranged meetings for and attended events with a benefactor who had provided the governor and his wife with gifts worth more than $175,000. The Supreme Court ruled that official action must involve formal and concrete government actions or decisions, like holding a hearing or filing a lawsuit, and not routine political courtesies.

The McDonnell ruling has had a broad ripple effect, with defense lawyers raising it in corruption cases around the country.

In a unanimous ruling, the panel considering Silver’s case concluded that given the McDonnell decision, the jury instructions at the former speaker’s trial were erroneous, and that a properly instructed jury might not have convicted him.

The judges said that the “language of the instruction at Silver’s trial captured lawful conduct, such as arranging meetings or hosting events with constituents.”

“We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José A. 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,” Cabranes added, “and the particular circumstances of this case, we simply cannot reach that conclusion.”

Silver, a 73-year-old Democrat from the Lower East Side of Manhattan, served as Assembly speaker for more than two decades. He was convicted on Nov. 30, 2015, of honest services fraud, extortion and money laundering, in one of the two most prominent corruption trials in New York City in years.

The Silver trial, along with the corruption trial of the former State Senate majority leader Dean G. Skelos and his son, Adam, exposed Albany’s seamy culture of secrecy and influence peddling. Both Silver and Skelos, who is a Republican, forfeited their seats upon their convictions.

The two trials, which ran concurrently in adjacent federal courthouses in lower Manhattan, are now fused in their appeals: Lawyers in both cases cited the McDonnell ruling.

Silver was sentenced to 12 years in prison by the judge, Valerie Caproni, but he was allowed to remain free pending his appeal. Dean Skelos was sentenced by a different judge to five years in prison, and his son was sentenced to 6 1/2 years. They are also free pending their appeals, which are before a different 2nd Circuit panel.

At Silver’s trial, prosecutors said that he had obtained illicit payments in return for official actions in two schemes.

In one, he arranged to have the state Health Department award two grants totaling $500,000 to a Columbia University cancer researcher, Dr. Robert Taub. In turn, Taub sent patients with legal claims to Weitz & Luxenberg, a law firm that gave Silver a portion of the fees it received.

In the other scheme, Silver arranged to have two real estate developers, Glenwood Management and the Witkoff Group, send certain tax business to a law firm, Goldberg & Iryani, which also gave him a portion of its fees. Silver, prosecution evidence showed, supported real estate legislation, for example, that benefited the developers.

Joon H. Kim, the acting U.S. attorney for the Southern District of New York, said in a statement that although his office was disappointed by the ruling, “we respect it, and look forward to retrying the case.”

“We look forward to presenting to another jury the evidence of decadeslong 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.”

His predecessor, Preet Bharara, who as U.S. attorney brought the case, and who was later fired by the Trump administration, posted on Twitter:

Two of Silver’s lawyers, Steven F. Molo and Joel Cohen, said in a statement, “We are grateful the court saw it our way and reversed the conviction on all counts.”

In his summation at Silver’s trial, Molo declared that his client was not guilty. “Sheldon Silver did not sell his office,” he argued. “There was no quid pro quo.”

Reaction to Silver’s legal victory spread quickly through the state’s political echelons, prompting cautious reactions from some leaders and a renewal of harsher criticism from others.

Gov. Andrew M. Cuomo, speaking to reporters after an event in Buffalo, said he wanted to “wait to find out what the final disposition is.”

“I understand the legal complexity,” the governor, a Democrat said, “so let them fully litigate the case and then see where we wind up.”

In a retrial, the government’s case would probably be streamlined a bit, said Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School.

“It’s a factually complex case, but it’s not that the opinion is hard to comply with,” she said. “All you have to do is get the jury instructions right and then describe the evidence appropriately and not call things official acts that are not official acts.”

Cabranes’ opinion was joined by Judges Richard C. Wesley and William K. Sessions III.

The court’s decision was a hot topic in Silver’s Grand Street neighborhood Thursday, at places like Moishe’s Kosher Bakery and the Fine Fare Supermarket. And at East Side Glatt, a kosher butcher two blocks from Silver’s co-op, an argument broke out a few hours after the ruling was announced.

Three customers praised Silver for his humility and devotion to the community. But Eric Klein, another customer, addressed them on his way out of the shop. “We have far too many crooks in this city as it is,” Klein said, adding that despite the overturning of Silver’s conviction, “He still did what he did.”

But the cashier at the shop, Nurit Ben-David, interjected, saying of Silver: “We support and love him. We’re with him.”

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