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Appeals court judges closely question prosecutor in Sheldon Silver case

The judges indicated concerns about whether the jury instructions and the evidence sufficiently linked the legal referrals Silver received to a promise to take actions in return.

The appeals panel, in an unusually long hearing,

The appeals panel, in an unusually long hearing, questioned the former Assembly speaker's second conviction for bribery. Photo Credit: Craig Ruttle

A panel of federal appeals judges in Manhattan repeatedly questioned a prosecutor Wednesday about former State Assembly Speaker Sheldon Silver’s latest corruption conviction, raising the specter of a possible second reversal at an unusually long, hour-plus oral argument.

The judges didn’t signal the outcome, but they indicated they had concerns about whether jury instructions and the evidence sufficiently linked Silver’s receipt of legal referrals from a doctor and two real estate companies with a promise to take specific official actions  in return.

One member of the Second U.S. Circuit Court of Appeals panel, Judge Richard Wesley, compared the case with his own experience as a former assemblyman, when campaign contributors expect help and legislators usually intend to provide it when issues affecting a donor come up.

“Is that a crime?” Wesley asked prosecutor Dan Richenthal. “That’s the nature of politics. People don’t just give you money to be your friend.”

Silver, 75, was accused of taking bribes disguised as $4 million legal fees from a mesothelioma researcher who referred patients with asbestos cases to Silver's law firm in return for state research grants, and from developers who used a different law firm in return for help on legislation.

He was convicted in 2016, but the Second Circuit reversed that after the U.S. Supreme Court raised the standard of proof in federal bribery cases. He was convicted again last year and sentenced to 7 years in prison. But in September the sentence was delayed, pending his appeal.

The postponement runs out next week unless it is extended by the panel that heard Wednesday’s argument — Wesley and Judges Raymond Lohier and Richard Sullivan. Their decision on extending the stay could give an early signal about how they will rule in the case.

A key issue on appeal is U.S. District Judge Valerie Caproni’s jury instruction that they didn’t need to find Silver entered into an “agreement” to do particular acts in return for money, only that he generally understood he was expected to exercise influence in some way at some point. 

The judges questioned whether that was a specific enough requirement. “It sounds like you’re saying it might be useful later, and we’ll work it out later,” Sullivan said to Richenthal. “That’s pretty squishy.”

Neither the asbestos researcher nor the developers testified  about any explicit agreement with Silver. Meir Feder, the lawyer for the ex-speaker, said a “hope” that he would provide official help wasn’t enough.

“The judge focused on intent and did not require a promise or a commitment, as all the cases require,” he told the panel.

Prosecutors also face another hurdle: The research grants that Silver allegedly gave researcher Dr. Robert Taub in return for referrals ran out before the 2010 statute of limitations, so they have to argue that the alleged arrangement continued in later years through other favors.

But Richenthal appeared to allay some of the judges’ concerns by arguing Caproni gave proper instructions on a legal theory under which Silver could be on a “retainer” to perform unspecified acts, and he said Silver’s responsiveness to his benefactors and guilty reaction to an FBI probe proved the bribery schemes were real.

“We don’t have an explicit understanding in return for official action. . . . But we have statements and timing that are indicative of what’s happening,” he said.

The judges gave no indication of when they might rule.

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