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.