Thank you. Charlie Sheldon Silver, the once powerful Speaker of the New York State Assembly, has been given a reprieve by the Second Circuit Court of Appeals. Silver was convicted of bribery in twenty fifteen for taking four million dollars in kickbacks and was sentenced to twelve years in prison. He was at on bail pending his appeal, which he won. Today, the Manhattan Appeals Court tossed Silver's conviction because the instructions given to the jury did not comport with the Supreme
Court ruling last year. Silver does not have a get out of jail free card, though the Manhattan US Attorney, the acting Manhattan U s Attorney, says Silver will be retried. Joining me to discuss the case and its repercussions is former federal prosecutor Robert Mintz, the head of the white collar and criminal investigations practice at McCarter and English, and Jeffrey Bell and a professor at William and Mary Law School, Bob.
The Supreme Court case that caused this reversal was the case involving Bob McDonald, a former Republican governor of Virginia. What did the court rule there that case June was one that really had a strong impact on the government's ability to bring these types of honest services fraud cases because what it did is it redefined what constituted an official act. In that case, the facts were pretty straightforward.
It was clear that the governor of Virginia, Governor Robert McDonald, had had received a hundred and seventy five thou dollars in loans and gifts from a business men, and in exchange for that, what he did is he set up meetings and provided the use of the Governor's mansion in order to try to promote this nutritional supplement on behalf
of the businessmen who had given him those gifts. And the question was whether that type of conduct, setting up meetings, providing the governor's mansion, whether that type of conduct constituted what what is an official act under the statute on The Supreme Court held that it did not, that it was too close to the line of what would be normal constituents and services, and therefore that conviction was overturned. Jeff,
is this reversal really a surprise? Former Manhattan US Attorney Pre Barrara said in the panel discussion in October that the McDonald case might muck up the verdict in Silver, Yes, I agree it did. It was likely it would muck it up, and it did muck it up, and I agree with you that it was not a surprise. I mean, the lower courts we're using a jury instruction to define official act throughout the country that was much looser than the jury instruction that has to come now after the
McDonald case. Essentially, official act was defined prior to McDonald as any act taken in an official capacity, and after McDonald, as Bob says, there's a much narrower definition. And so the jury is that decided cases in this interim period. We're all using a jury instruction that the McDonald case
says was too friendly to the government. And so the defendants and those cases have a very strong argument on appeal, just like Mr Silver did, that they should get a new trial with the proper jury instruction, Bob, Are the facts in this case that the prosecution presented different enough from the McDonald case. Is there enough of a quid pro quo and official acts that they have a good chance of getting a conviction the second time around? Well,
the facts are very different. The case of Sheldon Silver essentially involved two criminal schemes where the governmental legs he
abused his position for personal gain. One of them involved UH performing favers for a doctor in exchange for the doctor referring methothelium with patients to Silver's law firm, and the other UH involved to real estate developers who Silver was allegedly providing favors for again in exchange for referral fees, and as a result, according to the government, these schemes
produced about million dollars in referral fees for Silver. And the question in these in each of these cases is with the new instruction that would have to be given pursuant to the McDonald case, would the jury still have convicted Sheldon Silver. And we're going to find out, obviously, because he's going to be retried according to the U. S. Attorney UM in the Southern District. But the facts I
think are pretty strong here. Uh. There are some issues about statued limitations because some of the conduct occurred outside the five year Statute, and there'll be some issues about whether all of that comes in UM. But again turns on whether the favors that were performed by Silver constitute official acts within this narrower definition that the McDonald court handed down Jeff. This ruling comes just days after the same court upheld the bribery conviction of former Brooklyn Assemblyman
William Boylan Jr. On similar grounds. Questioning the jury instructions, what was the difference between the two cases? All right, well, this this is a question I'm not prepared for us. I'm not gonna answer this one, but I will. I wanted to comment on your previous question to Bob Mints on on what will happen going forward with the Silver case.
If you remember, in the McDonald case, the attorneys that prosecuted the case wanted to go forward on that case and retry him as well, and it was according to leaks, it was the Department of Justice Main headquarters that overruled that. And so I think there's still we're still to see if the case against Silver as were tried. I unfortunately don't know the facts of the case of your reference. I can't comment on the differences there. Bob, Do you know that case. It's not quite as as well known
as the Silver case. But let's take the conviction of former New York Senate leader Dean Skelos. Is that in jeopardy now because he was convicted on extortion, bribering conspiracy charges, and he too is cited the McDonald ruling in his appeal, which is pending. Yeah, I mean, every single case that has come down own um, where there was a conviction prior to McDonald, you can bet that defense lawyers are
going to argue that those instructions um were flawed. And it's important to bear in mind that even in this case where the conviction was reversed, the Supreme Court, uh, the Second Circuit rather is not saying that there was insufficient evidence to gain a conviction. They're just saying that a reasonable jury might have gone either way if the
instructions had been properly delivered. So I think with with the with the Silver case, and and with Dean Skelots, those are cases that, um, we're just gonna have to see how they play out. I think it's very difficult to predict whether there'll be a conviction again with the narrower instructions that are now mandated by the McDonald decision. Jeff, can you explain in simple terms how much narrower the the instructions are now I mean, and and what the
purpose of of the narrowing is sure. The Supreme Court, I think the way they looked at the McDonald case was they were alarmed that the jury instruction in that case that said if you give a politician any money in exchange for official acts, and if you would define official act as anything the government official does in an official capacity, that it looked like that would make almost every politician at jeopardy for being criminally prosecuted, because politicians,
as we unfortunately know, are constantly receiving money from donors and the like, and they're then providing access and favors to those donors. And it seemed like the jury instructions allowed juries to convict if you gave a politician some money and the politician gave you access in a meeting or something like that that other constituents did not receive.
The Supreme Court kind of blinked at that. Even though the statute that they were working under could have covered that conduct, Streme Court didn't didn't want that to be the case, and so they interpreted the statute more narrowly and said, it's not enough to just get access, to just get a meeting, to just get a phone call
from your politician. When you give them money, it has to be that the politician promised to give you some actual official result, right, So like there is something, I'm sorry, I'm gonna have to I'm gonna have to stop me there. I'm sure we'll be discussing this McDonald case over and over again. Thank you, Jeff Bell and Professor William and Mary Law School and Bob Man's head of the White Color and Criminal Investigations Unit at McCarter and English