Sheldon Silver’s Conviction Reversed By Second Circuit

As Jesse Eisinger portrays Preet Bharara in his upcoming book, “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives,” he was a show pony who adored the spotlight and went for the low hanging fruit to become a public darling. The biggest notch on Preet’s gun was the former leader of New York’s Assembly, Shelly Silver. Silver was convicted on seven counts of corruption and sentenced to 12 years in prison.

The Second Circuit reversed and remanded.

It’s not that Silver didn’t engage in the conduct as alleged, but that Shelly Silver was the product of a long New York tradition, its roots going back to Boss Tweed, of New York politicians skirting the dirty. As Appellate Squawk explained at the time:

What has Silver done to deserve a murder sentence? You won’t find out from the media, dutifully delivering the prosecution’s press releases. “Bribery,” “kickback,” “extortion,”  “money laundering,” “scheme to defraud the public of honest services.”  You’d think he was some kind of Godfather putting horse’s heads in people’s beds.

Whether white-collar or no-collar, the names of criminal offenses are designed to conjure up horrifying visions vastly out of proportion to what the prosecution actually has to prove.  What could sound more wicked than “Scheme to Defraud the Public of Honest Services”? Visions of public works collapsing because they were built with Mafia cement. Little children going hungry because politicians are stealing their school lunches. But according to Caproni’s Jury instructions, “scheme” means only a plan to accomplish a goal and “defraud” simply means lying. It doesn’t matter if the public didn’t lose any money because of the “scheme.” It’s the idea of being lied to that deprives them of  the “intangible right of honest services.”

As the Supreme Court subsequently ruled* in McDonnell v. United States, Judge Valerie Caproni’s instructions to the jury exceeded the elements of the offense, divorcing words from meaning so that Shelly’s ugly actions would produce another front page for Preet.

Everybody knows what bribes and kickbacks are:  when a public official gets something from someone “in exchange for the promise or performance of an official action.” But in prosecution-land, it doesn’t matter whether the “briber” gave with the intention of getting something back, or whether the official ever did anything for the briber. And even if the official does do something that benefits the briber, it doesn’t matter whether it was also good for the rest of the public.  Or that the official would have done it anyway without the bribe.  The crime is apparently that the official had thoughts of a quid pro quo.

In Silver’s case, the charge was that a cancer researcher and some big developers referred business to law firms chosen by Silver because they thought Silver might do something in return.  The prosecution didn’t have to show that there was anything wrong with the cancer research or the quality of representation by the firms, or that Silver’s referral fees were exorbitant. They didn’t have to show that he did anything for the researcher or developers that he wouldn’t have done anyway.  No doubt the public has suffered intangible harm from Silver’s not disclosing the referrals, but is that proportional to throwing him in prison until he’s 84?

It’s not that Silver deserves a good citizenship award, but that this was how New York politicians traditionally paid for their lifestyle.

We put our citizen-legislators into an impossible position. You see, the job isn’t full-time, and doesn’t get full-time pay, so legislators like Shelly are expected to go earn a living on their own time while simultaneously holding very powerful positions. It’s bad enough that they have to run for office every two years, which means they have to start fundraising the day after they win election for the next election. But they need to earn a living, feed the kids, pay the mortgage, buy clean shirts.

And yes, they want to enjoy a nice lifestyle. Don’t you? They ran for the legislature, not the priesthood.

Upon learning of the reversal, a press release was issued by the Southern District of New York, and Preet seized upon a line to salvage his dignity.

SDNY will retry Silver. Evidence “was sufficient to prove all the crimes charged against Silver, even under the new legal standard.”

Even the New York Times refused to spin it that flagrantly:

In a unanimous ruling, the panel considering Mr. Silver’s case concluded that given the McDonnell decision, the jury instructions at the former speaker’s trial were erroneous, and that a properly instructed jury might not have convicted him.

While the Second Circuit rejected Silver’s argument that the evidence against him was legally insufficient, such that the case should be dismissed, they similarly held that the evidence failed to suffice so that the error was harmless.

Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error. We further hold that 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.

What Shelly Silver did in taking advantage of his office for personal gain was, without a doubt, ugly and reprehensible. It was also what politicians in New York have done forever, because the opportunity was handed them on a silver platter while they were expected to somehow pretend to remain above the fray while this part-time job that only demanded 24 hours per day could pay the bills.

As the Supreme Court held in McDonnell, bribing or paying kickbacks to politicians for the exercise of their authority, a quid pro quo, is a crime. Currying favor with politicians in the hope they would use their clout in a way that serves the interests of those who support him is politics. And it would be a terrible shame if Preet’s old office wasn’t able to live up to his twitter bravado and Preet never got to see his handsome face on the cover of a magazine again.

*While the decision came out after Silver’s conviction, the McDonnell case was already before the Court and it was well-known that a decision as to the vast prosecutorial expansion of culpability beyond the statutory scope of bribery and kickbacks could be rejected by the Supreme Court.

10 thoughts on “Sheldon Silver’s Conviction Reversed By Second Circuit

  1. B. McLeod

    What happened with “honest services fraud” was a classical illustration of prosecutorial abuse. With absolutely no indication of any tie to congressional intent, U.S. Attorneys across the country tried to criminalize garden variety patronage. I remember one case in which they charged a woman for alleged procurement fraud on the theory that she anticipated selection of a particular contractor would please her supervisor and further her career. The courts had to rein this in because it was simply off the rails, unsupported by any words in the actual law passed by congress (and, when you think about it, not the kind of thing members of Congress would be likely to want).

    1. SHG Post author

      That’s exactly right. Prosecutors sought to stretch the law beyond its breaking point to convict people (both corporate and political) who failed to meet their demands for existential purity.

      1. B. McLeod

        In the worst cases, there was no question of purity, but simply of U.S. Attorneys who were shameless political hacks, shamelessly using the criminal law to take political sides in a controversy. The cases brought over the San Diego pension funding fiasco are a prime example. The U.S. Attorney there essentially leveraged federal criminal law to help the City of San Diego back out of a deal with its pension boards and unions, which the city had itself initiated. Although defendants targeted in the campaign (such as the pension system’s counsel, Lorraine Chapin) were eventually exonerated, their careers were destroyed and savings exhausted by the costs of the protracted litigation. Casting such efforts as any form of anti-corruption is unduly kind. They weren’t anti-corruption, but just different corruption, as dirty as can be in their own right.

          1. B. McLeod

            Just as an example, of which, I’m sure you are aware there are others. I could as easily have picked an infamous incident in Alaska, in which DOJ’s so-called “Public Integrity Section” (“PIS”) was eventually exposed as dirty. It’s a big problem when feds are dirty, and an even bigger problem when the system puts a runaway prosecution tool at their disposal.

            1. SHG Post author

              There are plenty of examples, but this post is about Shelly Silver, so rather than dive down the rabbit hole of arguing the merits of Ted Stevens’ prosecution, let’s stick to the subject of my post rather than indulge in the butterfly theory of relevance.

          2. B. McLeod

            To refocus, my attempted point was in the first line. It seems to me these cases are often not about a quest for existential purity. As to Mr. Silver’s case in particular, I will defer to your view of the politics, since they are NY politics.

            1. Mark M.

              B. McLeod, once I read your Sad San Diego Tale, I already knew what color the next shoe would be. I was correct. Nevertheless, I respect your Charge-of-the-Six-Hundred-ness, as I am quite sure that you also foresaw that same tasteful and lawyerly Wingtip coming down. While I devour the law discussed, I am quite tickled by the antics our little community here. Uhmmmm, could be, this post might arguably be possibly construed by some as off point, too…

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