U.S. prosecutors 'look forward to retrying' Silver's case

A federal appeals court in Manhattan on Thursday overturned the 2015 corruption conviction of former Assembly Speaker Sheldon Silver, but prosecutors quickly signaled that they would seek to retry the case against the once powerful Albany power broker.

The Second U.S. Circuit Court of Appeals found that there was sufficient evidence to convict the veteran legislator in two corruption schemes, but jury instructions didn’t comply with a new Supreme Court decision narrowing the scope of the type of act a public official had to engage in to be guilty in a quid pro quo bribery scheme.

“This error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for the verdict to stand,” the unanimous three-judge panel ruled.

Silver, 73, was convicted in 2015 of “honest services fraud” and other charges for helping real estate developers and a cancer researcher who funneled legal business to him. He was sentenced to 12 years in prison, but it was stayed pending the outcome of the appeal.

The conviction was one of the signature victories of former U.S. Attorney Preet Bharara’s campaign at public corruption, but the outcome was known to be in doubt because of the Supreme Court’s decision in a case involving former Virginia Gov. Bob McDonnell, which followed Silver’s trial.

Acting U.S. Attorney Joon Kim said he was confident the outcome would be the same at a planned retrial in which the jury gets correct instructions.

“Although this decision puts on hold the justice that New Yorkers got upon Silver’s conviction, we look forward to presenting to another jury the evidence of decades-long corruption,” Kim said. “Although it will be delayed, we do not expect justice to be denied.”

Silver lawyers Steve Molo and Joel Cohen, in a brief statement, said, “We are grateful the court saw it our way and reversed the conviction on all counts.”

Former State Senate leader Dean Skelos has challenged his conviction on the same grounds as Silver. While his appeal was heard by a different three-judge panel of the Second Circuit, the Silver reversal is a promising sign for him. His lawyers declined to comment.

The Silver panel on Thursday said that under the new standards set by the Supreme Court a corruption case required proof that Silver engaged in a “formal exercise of government power” as part of a bribery scheme, rather than lesser acts like making a phone call or having a meeting.

Silver’s trial included proof of both acts that met that standard — pushing $500,000 in legislative grants for the cancer researcher, and backing real estate legislation for the developers — and lesser acts, like trying to get the researcher’s child a job, helping get permits for a charity race, and meeting with lobbyists.

Prosecutors, despite the fact that the McDonnell case was pending in the Supreme Court, took an aggressive approach and argued at trial that all were official acts — a strategic choice that defense lawyers questioned during oral arguments.

The Second Circuit said it’s now impossible to tell which acts the jury relied on in convicting Silver, and whether they would still qualify.

“We recognize that many would view the facts adduced at Silver’s trial with distaste,” the court said. “The question presented to us, however, is . . . whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty.”


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