Judge orders Sheldon Silver to remain free on bail pending an appeal

Former Assembly Speaker Sheldon Silver will stay out of prison on bail for at least two more months while his conviction on corruption charges is being appealed, a Manhattan federal appeals court ruled on Wednesday.

A three-judge motions panel of the Second U.S. Circuit Court of Appeals gave a reprieve to the ex-speaker, who was supposed to begin serving a 7-year prison term on Oct. 4, at least until Dec. 10, under an expedited schedule for preparing briefs in his appeal.

After that it will be up to the judges assigned to decide Silver’s case whether he is allowed to remain free, said appellate judge Jose Cabranes.

Silver, 74, was first convicted in 2016 of two bribery schemes in which he made $4 million in referral and legal fees for doing official favors for a mesothelioma researcher and two real estate companies. He stayed out of jail while he successfully appealed that case.

He was again convicted in May, and in July Manhattan U.S. District Judge Valerie Caproni ordered a $1.75 million fine and a $3 million forfeiture in addition to the 7-year prison term. Last week, an appeals judge said his surrender would be delayed until a panel heard his bail request.

The continuation of Silver’s bail came after an hourlong argument over Silver’s claim that — as at his first trial in 2015 — Caproni again instructed jurors incorrectly on requirements of federal bribery law.

His attorney Meir Feder said Caproni should have told jurors that they had to find an “agreement” by Silver with the individuals who bribed him to take particular actions in return for money, but instead allowed them to convict merely on evidence that he was given payoffs just to curry favor.

Prosecutor Daniel Richenthal said that an agreement was not required, but even if it were the evidence in Silver’s case was “overwhelming” and any flaw in the jury instructions was harmless.

One member of the panel, Judge Robert Sack, said it was hard to weigh the standard for bail pending an appeal — whether there is a “close question” of law — without getting into the merits of a case, but the briefs filed on a bail question didn’t give enough detail on the merits.

“This is a more profound and important case than the run of cases we normally hear,” he said. “My concern is the difficulty of deciding something having to do with the merits in this manner.”

Under the schedule announced by Cabranes, Silver will have to file his brief by Oct. 26, prosecutors will file theirs by Nov. 14, and Silver will reply by Dec. 3.

From there, he said, the postponement of surrender will expire seven days after the judges assigned to the case “deem the matter submitted for decision” unless they extend it. The office of U.S. Attorney Geoffrey Berman declined to comment on the delay.