White Collar Criminal Defense Group

Second Circuit Vacates Silver Conviction, Questions Whether All Official Acts Worth Punishing

What Happened?

The U.S. Court of Appeals for the Second Circuit vacated the judgment of conviction against Sheldon Silver, the former Speaker of the New York State Assembly, who was found guilty of committing honest services fraud, Hobbs Act extortion, and money laundering following a jury trial. United States v. Silver, — F.3d —-, 2017 WL 2978386 (2d Cir. Jul. 13, 2017).

The Rundown

Silver appealed from his judgment of conviction, arguing primarily that the District Court’s jury instructions were erroneous under the U.S. Supreme Court’s subsequent decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). In McDonnell, the Supreme Court clarified that an “official act,” an element of honest fraud and extortion, is a “decision or action on a ‘question, matter, cause, suit, proceeding or controversy’” involving “a formal exercise of governmental power.” At Silver’s trial, the district court instructed the jury that an official act was “any action taken or to be taken under the color of official authority.” While that instruction was consistent with the law at the time it was given, the McDonnell Court’s definition of “official act” made it erroneous in retrospect. The error was not harmless, per the Court, because it was not clear that the jury would have found Silver guilty were it properly instructed.

But the Court went beyond applying McDonnell. It also suggested that a jury could reasonably consider some of Silver’s alleged misconduct to be too perfunctory to constitute the quo of a quid pro quo fraudulent scheme, even if it passed muster as an “official act.” On retrial, the jury must find not only that Silver was compensated for official acts, but also that those acts were significant enough to constitute fraud.

For the Record

Judge Cabranes, writing for the Court, on the nature of resolutions honoring constituents: “A rational jury could . . . conclude that, though certainly ‘official,’ the prolific and perfunctory nature of these resolutions make them de minimis quos unworthy of a quid.

The Take-Home

It is worth monitoring whether U.S. Attorney’s Offices within the Second Circuit alter their charging practices based on the Court’s suggestion that not all “official acts” are significant enough to warrant conviction. In any event, future defendants now have footing to argue for favorable jury instructions or vacating their convictions based on the Court’s observation.

What Happens Next?

Acting U.S. Attorney Joon H. Kim asserted that Silver will be retried.

Department Of Education Revisits Title IX Due Process For Respondents: What Does This Mean For Higher Education?

What Happened?

The Department of Education’s recent comments strongly suggest that it will be revisiting the 2011 Dear Colleague Letter, particularly whether the required process for investigating allegations of sexual assault are unfair to, and biased against, respondents (students defending themselves against allegations of sexual assault). On the heels of this announcement, Columbia University recently settled the twice-dismissed lawsuit by a male student accused, but exonerated, of allegations that he sexually assaulted a student. The plaintiff student alleged that Columbia engaged in gender-based discrimination after he was cleared of the allegations.

The Rundown

The 2011 Dear Colleague Letter was the high water mark for a process that was heavily weighted in favor of the complainant. Over the years, particularly as codified by the October 2014 regulations promulgated pursuant to the Violence Against Women Reauthorization Act (“VAWA”), the pendulum has been swinging back towards affording respondents defined due process rights, including mandated notice and advisor-of-choice provisions. However, colleges and universities still are afforded great discretion in how to proceed with the investigation and resolution of Title IX complaints. The Department of Education’s recent comment is a potential further swing of the pendulum toward greater due process for respondents.

The Take-Home

What does this mean for institutions of higher education? Expect more specific requirements for due process for respondents – more specific notice, more input by respondent into the investigative process, and an assault on the “single investigator” model. Also expect a push to provide schools with the discretion to delay its Title IX process while a criminal investigation is ongoing – thereby removing the Hobson’s Choice faced by respondents of defending against the school’s disciplinary process and giving up the Fifth Amendment right to remain silent; or invoking that right and being unable to provide a statement in the investigative process or to testify at a disciplinary hearing.

Educational institutions are wise to build into their Title IX process greater due process to respondents than that required by current law, in support of both the institution’s culture and to minimize the likelihood of lawsuits surviving past the motion practice stage (if they are filed at all). Schools should anticipate a future mandate from the Department of Education that will require further modification of the existing Title IX policies and procedures.