Sheldon Silver Gets Shot At Freedom After Appeals Court Vacates Convictions

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Kevin Daley Supreme Court correspondent
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The 2nd U.S. Circuit Court of Appeals vacated former New York Assembly Speaker Sheldon Silver’s seven corruption convictions Tuesday.

In a 54-page decision, the 2nd Circuit explained that that the trial court gave incorrect instructions to the jury as deliberations began during the 2015 prosecution. Silver was convicted of extortion and honest services fraud, after accepting some $4 million in exchange for favors to political allies over the course of his career in the legislature.

Shortly after Silver’s conviction, the Supreme Court clarified the definition of “official act” in extortion and honest services fraud prosecutions in its McDonnell v. U.S. decision. In that case, the high court unanimously vacated the conviction of former Virginia Governor Bob McDonnell, who accepted lavish gifts from campaign supporters and donors while in office.

In that case, the justices explained that illicit payments must result in a formal exercise of power in a pending matter or proceeding in order to be considered an “official act” within the meaning of the anti-corruption statutes.

The instructions given to the jury in the Silver prosecution did not follow this construction. Rather, the jury was told that an “official act” is “any action taken or to be taken under color of official authority.”

The 2nd Circuit rejected Silver’s argument that the evidence federal prosecutors presented was insufficient for conviction.

The case will now return to the District Court for the Southern District of New York for further proceedings.

Acting U.S. Attorney Joon Kim promised a swift retrial, and expressed confidence that his office would secure a conviction.

“Although finding that the Supreme Court’s McDonnell decision issued after Silver’s conviction required a different legal instruction to the jury, the Second Circuit also held that the evidence presented at the trial was sufficient to prove all the crimes charged against Silver, even under the new legal standard,” he said.

“Although it will be delayed, we do not expect justice to be denied,” he added.

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