A Silver Lining for New York’s Former Assembly Speaker

In the years since the U.S. Supreme Court decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), courts have required prosecutors to be more focused when alleging and proving that an “official act” has been performed in exchange for a bribe in violation of mail and wire fraud statutes and the Hobbs Act. In McDonnell, Chief Justice John Roberts was mindful of the ways in which our representative government functions. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.” Id. at 2372.

After McDonnell, the Second Circuit considered the sufficiency of the evidence and the jury instructions in two criminal trials of Sheldon Silver. As the Speaker of the New York State Assembly and an Assemblyman for close to 40 years, Sheldon Silver was one of New York’s most powerful public officials. In each of the trials, Sheldon Silver was convicted of extortion and honest services fraud. In the first appeal, decided after the Supreme Court’s 2016 McDonnell decision, the Second Circuit held that a jury instruction failed to meet the McDonnell’s narrowed definition of “official act” and reversed Silver’s conviction. United States v. Silver (Silver I), 864 F.3d 102, 119 (2d Cir. 2017). After a second jury convicted Silver of extortion and honest services fraud, the Second Circuit held that extortion under color of right and honest services fraud requires evidence that an official understand, at the time he accepts payment, the particular question or matter to be influenced. United States v. Sheldon Silver, Docket No. 18-2380, 2020 WL 284426, at *2 (2d Cir. Jan. 21, 2020). Applying this standard, the Second Circuit determined that the jury instructions failed to convey that, in order to convict Silver of extortion and honest services fraud, Silver had to take official action on a specific and focused question or matter. Because the evidence pertaining to certain counts failed to establish that Silver undertook official action on a specific question or matter, Silver’s conviction on those counts was reversed.

Factual Background