Second Circuit (Again) Reverses Sheldon Silver's Corruption Conviction (In Part) − And Brings Some Clarity To The 'As Opportunities Arise' Theory Of Liability

Author:Mr John Hillebrecht, Courtney Gilligan Saleski, Andrew Lewis and Jessica A. Masella
Profession:DLA Piper
 
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For the second time in two years, the Second Circuit has reversed high-profile convictions of former New York State Assembly Speaker Sheldon Silver. And, for the second time in two years, the circuit court has provided important clarification to the law around illicit payments to public officials, while also reining in yet again aggressive prosecution efforts in this area.

This time, exactly five years after Silver's arrest, the Court of Appeals reversed three of seven counts of conviction, again finding that the district court at retrial erred in instructing the jury on the elements of honest services fraud and Hobbs Act extortion. See United States v. Silver, No. 18-2380, 2020 WL 284426, at *2 (2d Cir. Jan. 21, 2020). The decision by the Court of Appeals offers much-needed clarity with respect to the narrow “as opportunities arise” theory of liability in cases involving allegations of bribery. As in several other recent cases, Silver argued in part that prosecutors had not identified with sufficient specificity the particular acts he was to perform in return for accepting a bribe.

Silver worked part-time as a lawyer during his tenure as Speaker of the Assembly, which the government alleged served as the vehicle for Silver to exploit his elected position for unlawful personal gain. Id. at *2. The government alleged Silver orchestrated two separate bribery schemes in which he received referral fees from law firms in exchange for official actions. Id. In one scheme, Silver performed official acts to benefit a medical doctor who referred mesothelioma patients to Silver's law firm (the Mesothelioma Scheme). Id. In the other, Silver performed official acts benefiting two real estate developers who had hired a different law firm that paid referral fees to Silver (the Real Estate Scheme). Id.

Silver was first convicted in 2016 of accepting illegal bribes, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, and the Hobbs Act, 18 U.S.C. § 1951, and of laundering the related proceeds, in violation of 18 U.S.C. § 1957. Id. at *1. A year later, the Second Circuit reversed Silver's conviction in its entirety, finding that the district court's jury instruction “failed to meet the narrowed definition of 'official act' set forth in the intervening Supreme Court decision,” McDonnell v. United States, 136 S. Ct. 2355, 2371-72 (2016). Id. (citing United States v. Silver (Silver I), 864 F.3d 102, 119 (2d Cir. 2017), cert. denied, 138 S. Ct. 738 (2018)). Silver was subsequently retried and, in May 2018, the jury again convicted him on all seven counts. Id.

Silver's two arguments

This time around, Silver advanced two principal arguments on appeal, both of which challenged the district court's jury instructions at retrial: (1) that Hobbs Act extortion under color of official right and honest services fraud require evidence of anagreement, ie, a meeting of the minds, between the alleged bribe payor and...

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