A Manhattan federal appeals court on Tuesday overturned the corruption conviction of former Senate leader Dean Skelos, knocking down a second pillar of former U.S. Attorney Preet Bharara’s cleanup Albany campaign on the same grounds it reversed former Assembly speaker Sheldon Silver’s conviction a few months ago.
The Second Circuit U.S. Court of Appeals said the conviction of Skelos and his son Adam for using the father’s influence to extort financial benefits for his son had to be overturned because the jury charge didn’t comply with a new Supreme Court ruling that narrowed federal anti-corruption laws.
“Because we cannot conclude that the charging error was harmless beyond a reasonable doubt, we are obliged to vacate the convictions,” Judges Reena Raggi, Ralph Winter and Alvin Hellerstein said in an unsigned order.
The three-judge panel ruled, however, that there was sufficient evidence for the charges to support a conviction of quid pro quo bribery if a jury was instructed properly, and said the Skeloses could be retried.
“The abundant record evidence that Dean Skelos traded his vote for legislation . . . in exchange for benefits to his son . . . is sufficient to allow a reasonable jury to infer the existence of a quid pro quo arrangement,” the judges said.
Acting U.S. Attorney Joon Kim, Bharara’s replacement, said his office was disappointed and planned to aggressively pursue a retrial of the two Skeloses.
“We look forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos’ and Adam Skelos’ guilt and again give the public the justice it deserves,” Kim said. “We are as committed as ever to doing everything we can to keep our government honest.”
Bharara, in a tweet, called the ruling “not unexpected” and complained that the Supreme Court ruling had “made it harder to punish corruption, but justice should prevail here.”
Alexandra Shapiro, the attorney who handled Skelos’ appeal, applauded the decision and said the former state senator should have never been charged with a crime.
“Senator Skelos is grateful for the court’s careful consideration of the issues and looks forward to the next steps,” Shapiro said Tuesday in an email. “We believe that as events unfold it is going to become clear that this is a case that never should have been brought.”
Dean Skelos, 59, and Adam, 34, both of Rockville Centre, were convicted in 2015 of using the Senate leader’s clout to help Adam in three schemes to squeeze Physicians’ Reciprocal Insurers, a Roslyn malpractice firm, New Hyde Park developer Glenwood Management and Nassau County storm water contractor AbTech Industries.
They were sentenced, respectively, to 5- and 6½-year prison terms by Manhattan U.S. District Judge Kimba Wood, but have been free while their appeals were pending.
The Supreme Court, in a case last year involving former Virginia Gov. Robert McDonnell, ruled that corruption convictions could be based only on performance of an “official act” that represented a formal exercise of government power — not just a phone call or a meeting with a lobbyist.
Dean Skelos was accused of some acts that qualified — such as votes on legislation sought by Physicians Reciprocal and Glenwood — and others that might not have, such as meeting with lobbyists and arranging for access to state agencies.
The Second Circuit said that in the absence of a proper instruction it was impossible to tell whether the jury convicted on the basis of something that qualified as an official act, or something that didn’t.
“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 court said.
If the case is retried, it could be more challenging for the government in some respects. One of the key witnesses from the first trial, malpractice insurance executive Anthony Bonomo, has since been ousted by state insurance regulators for self-dealing and cronyism, providing Skelos’ defense team with ammunition to challenge his credibility
Silver’s conviction of doing favors for a doctor and two real estate companies that funneled legal fees to him was overturned in July on the same grounds. He is seeking a ruling from the Supreme Court to bar a retrial, but if his request is rejected he faces a new trial set for next April.