Federal prosecutors in the Sheldon Silver case faced sharp questioning Thursday from an appeals panel worried about whether the ex-Assembly Speaker’s corruption conviction can survive a new U.S. Supreme Court decision narrowing the scope of “official acts” that can be the subject of a bribe.
“You went to trial on the theory that anything Sheldon Silver did in connection with his role as speaker was an official act,” said Judge William Sessions. “That’s something totally different from what’s now the government action required. How do you know the jury would have made the same decision?”
The arguments provided a first glimpse of how the 2nd U.S. Circuit of Appeals in Manhattan will interpret the high court’s 2016 ruling in a case involving former Virginia Gov. Robert McDonnell, which held prosecutors must show an actual exercise of government power, not just a meeting or phone call.
It drew an overflow crowd, including prosecution and defense lawyers prepping to argue the same issues on the conviction of former Senate leader Dean Skelos, as well as U.S. District Judge Kimba Wood, who presided at Skelos’ trial, and new Acting U.S. Attorney Joon Kim.
Silver, who didn’t attend, was convicted in 2015 of sponsoring grants and doing other favors for an asbestos doctor who referred patients to the Speaker’s law firm, and also collecting legal referral fees from real estate developers whose legislation he supported. The Democrat was sentenced to 12 years in prison, but has remained free while appealing.
Steve Molo, Silver’s lawyer, said the former Speaker deserved a new trial because the evidence included both actual exercises of government power and lesser favors — like meeting with real estate donors and job references for the doctor’s children.
U.S. District Judge Valerie Caproni’s instructions gave jurors the latitude to convict on either, he argued. “It was inconsistent with what the law is now,” Molo said.
But prosecutor Andrew Goldstein contended that the case involved actual legislative acts, not just the constituent courtesies the Supreme Court said were insufficient in McDonnell’s case.
“This case involved far more than meetings and introductions and nothing more,” he said. “[Silver] engaged in official decision-making to benefit the people who were paying him.”
When the judges cited lesser favors which prosecutors had also argued were official acts, Goldstein said they were all part of a larger “scheme,” and were elevated by Silver’s power and clout.
But Judge Richard Wesley objected to that claim. “Then any powerful person who wants you to do something is committing a crime?” he said. “Is every invitation to a fundraiser a crime?”
The judges gave no timeline for their ruling.