Ex-Assembly Speaker's Graft Conviction Partly Overturned

Silver, a Democrat from Manhattan’s Lower East Side, had been sentenced to seven years in prison for accepting nearly $4 million in illicit payments in return for taking official actions in separate schemes on behalf of a cancer researcher, Robert N. Taub of Columbia University, and two real estate developers.

In its unanimous ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld Silver’s conviction in the real estate scheme and a separate money-laundering count, but overturned his conviction related to his arrangement with Taub.

Judge Richard C. Wesley, writing for the panel, said prosecutors had not identified with enough specificity the particular types of acts Silver was to perform for Taub in return for accepting a bribe.

“Without a requirement that an official must promise to influence a particular question or matter,” Wesley wrote, “any official who accepts a thing of value and then later acts to the benefit of the donor, in any manner, could be vulnerable to criminal prosecution.”

Silver, who has been free on bail, will now have to be resentenced by the trial judge, Valerie E. Caproni of U.S. District Court in Manhattan.

Silver, 75, served as speaker for more than two decades and influenced nearly every major aspect of state politics. His conviction in May 2018 came during a retrial: He was first convicted in November 2015 of honest services fraud, money laundering and extortion in one of the two most prominent public corruption trials in New York City in years.

Just two weeks after Silver’s first trial concluded, the state Senate’s majority leader, Dean G. Skelos, a Long Island Republican, was also convicted of federal corruption charges. Both men forfeited their seats in the Legislature upon being found guilty, and the trials shed light on Albany’s culture of secrecy and influence peddling.

Silver, who was sentenced to 12 years in prison, appealed, and his conviction was overturned by another 2nd Circuit panel. That panel cited a 2016 U.S. Supreme Court decision involving Bob McDonnell, a former Republican governor of Virginia, which narrowed the legal definition of corruption.

Wesley’s opinion Tuesday, which was joined by Judges Raymond J. Lohier Jr. and Richard J. Sullivan, indicated that the ruling was narrow and should not affect the prosecution of bribery in most cases.

In the scheme that the panel affirmed, prosecutors showed that Silver had arranged for the two real estate developers, Glenwood Management and the Witkoff Group, to refer certain tax business to the law firm Goldberg & Iryami, which also sent Silver a portion of its fees. Silver then supported legislation that benefited the developers, prosecutors said.

Silver’s lawyer, Meir Feder, and James M. Margolin, a spokesman for the U.S. attorney’s office in Manhattan, each declined to comment on the ruling.

Despite its vacating of Silver’s convictions in the scheme involving Taub, the panel noted that there was “overwhelming evidence that Silver knowingly accepted referrals in exchange” for action.

Prosecutors had alleged that Silver arranged for the New York state Department of Health to award Taub grants totaling $500,000 in return for Taub’s agreeing to refer patients with potentially lucrative legal claims to a law firm, Weitz & Luxenberg, which gave part of its fees to Silver.

“From the moment Taub approached Silver about research funding, Silver knew that he had power over something of great value to Taub,” Wesley wrote. “He then chose to abuse that power for personal gain.”

But Wesley said the statute of limitations barred the court from considering those awards, which occurred before 2007. He said Silver’s later acts to help Taub, like securing an Assembly resolution recognizing him and helping him obtain permits for a charity race, were insufficient to show such an agreement.

“We find no evidence in the record from which a rational jury could conclude that any quid pro quo between Silver and Taub related to official acts existed after 2007,” Wesley wrote.

“The only promise that could be inferred from the evidence presented at trial is that Silver promised to keep Taub happy as the opportunities to do so arose,” but such a promise, without more, fell short of what the law required, the judge added.

Berit Berger, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, said: “Ultimately, the circuit is saying they need more specificity from the government, and that’s not a terrible thing. It will put defendants and the public on notice about the details of the corrupt exchange and what benefit the public official was offering in exchange for the bribe.”

She added, “I don’t see this meaningfully affecting the government’s ability to bring significant public corruption cases.”

Berger, a former federal prosecutor in New York, also noted that Caproni, when she resentences Silver, may take into account all of his relevant conduct, including the scheme with Taub.

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“She could very well find that the same sentence is appropriate,” Berger said.

Susan Lerner, executive director of Common Cause New York, a watchdog group, said that the appeals panel Tuesday “had no alternative but to follow the bad precedent set by McDonnell and let Shelly Silver off the hook.”

“Nevertheless,” she said, “he will be punished for at least one of his crimes.”

This article originally appeared in The New York Times .