Sheldon Silver, former speaker of the New York state Assembly, exits from federal court in New York on May 11, 2018. Photo: Louis Lanzano/Bloomberg2nd Circuit Vacates Part of Ex-NY State Assembly Speaker Sheldon Silver's Corruption Conviction
The Second Circuit overturned the counts related to one of the alleged bribery schemes, which involved legal referral fees for mesothelioma cases.
January 21, 2020 at 02:55 PM
3 minute read
The original version of this story was published on New York Law Journal
The U.S. Court of Appeals for the Second Circuit vacated part of former New York State Assembly Speaker Sheldon Silver's conviction Tuesday, ruling that a Southern District of New York judge gave flawed jury instructions during Silver's 2018 trial.
Silver was sentenced to seven years in prison after he was convicted of seven counts related to two alleged bribery schemes during his 21 years as speaker. The Second Circuit overturned the counts related to one of the alleged bribery schemes, which involved legal referral fees for mesothelioma cases.
U.S. District Judge Valerie Caproni of the Southern District of New York failed to tell jurors that, in bribery cases, a particular question or matter must be identified at the time the official makes a promise or accepts a payment, the Second Circuit panel found in a decision written by Judge Richard Wesley of the U.S. Court of Appeals for the Second Circuit.
"Indeed, without a requirement that an official must promise to influence a particular question or matter, any official who accepts a thing of value and then later acts to the benefit of the donor, in any manner, could be vulnerable to criminal prosecution," Wesley wrote.
Meir Feder, a partner with Jones Day, represented Silver during his appeal. During Silver's trial, his lawyer was Allen & Overy partner Michael Feldberg. Feder declined to comment Tuesday.
The Second Circuit disagreed with Feder's argument that the U.S. Supreme Court decision in McDonnell v. United States ended the "as the opportunities arise" theory of bribery altogether, finding that Caproni simply erred in this case. The error was harmless in connection with the counts related to Silver's other bribery scheme, which involved legal referral fees for real estate tax work, the judges found.
The McDonnell case was decided just after Silver's first conviction in the Southern District, in 2015. The Second Circuit threw out the initial verdict because of issues related to McDonnell, but he was convicted in a retrial.
Judge Richard Sullivan of the U.S. Court of Appeals for the Second Circuit joined Wesley on Tuesday's opinion, and Judge Raymond Lohier filed a concurring opinion.
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