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United States v. Silver

United States Court of Appeals for the Second Circuit

March 13, 2019, Argued; January 21, 2020, Decided

Docket No. 18-2380

Opinion

 [*545]  WESLEY, Circuit Judge:

This appeal marks the second time we have been asked to review the conviction of Sheldon Silver, former Speaker of the New York State Assembly. In 2016, Silver was convicted of accepting illegal bribes, in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, and the Hobbs Act, 18 U.S.C. § 1951. He was also convicted of laundering the proceeds of those offenses, in violation of 18 U.S.C. § 1957. One year later, we found that the United States District Court for the Southern District of New York (Caproni, J.) gave a jury instruction that failed to meet the narrowed definition of "official act" set forth in an intervening Supreme Court decision, McDonnell v. United States, 136 S. Ct. 2355, 2371-72, 195 L. Ed. 2d 639 (2016). United States v. Silver (Silver I), 864 F.3d 102, 119 (2d Cir. 2017), cert. denied, 138 S. Ct. 738, 199 L. Ed. 2d 605 (2018). The Government tried Silver a second time, and the jury again convicted him on all seven counts.

Silver raises two principal challenges on appeal, both concerning the district court's jury instructions. [**3]  First, he argues that Hobbs Act extortion under color of official right and honest services fraud require evidence of an "agreement," i.e., a meeting of the minds, between the alleged bribe payor and receiver. Second, he argues that the "as the opportunities arise" theory of bribery we recognized in United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007) does not survive McDonnell, which, he claims, requires identification of the particular act to be performed at the time the official accepts a payment or makes a promise.

We disagree with Silver's first theory. ] Extortion under color of right and honest services fraud require that the official reasonably believe, at the time the promise is made, that the payment is made in return for a commitment to perform some official action. Neither crime requires that the official and payor share a common criminal intent or purpose. We do, however, find limited merit in Silver's second challenge. Although neither offense requires, as he argues, advance identification of the particular act to be undertaken, they do require that the official understand—at the time he accepted the payment—the particular question or matter to be influenced.

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948 F.3d 538 *; 2020 U.S. App. LEXIS 1737 **; 2020 WL 284426

UNITED STATES OF AMERICA, Appellee, THE NEW YORK TIMES COMPANY, NBCUNIVERSAL MEDIA, LLC, Intervenors, v. SHELDON SILVER, Defendant-Appellant.

Subsequent History: As Corrected January 29, 2020.

Stay denied by United States v. Silver, 2020 U.S. App. LEXIS 10183 (2d Cir., Jan. 21, 2020)

Prior History:  [**1] A jury convicted Defendant-Appellant Sheldon Silver of two counts each of honest services mail fraud, honest services wire fraud, and Hobbs Act extortion, and one count of money laundering. Silver argues that the United States District Court for the Southern District of New York (Caproni, J.) erred in instructing the jury on the elements of honest services fraud and Hobbs Act extortion.

We agree. Although Silver is incorrect in asserting that Hobbs Act extortion under color of right and honest services fraud require evidence of a meeting-of-the-minds "agreement," he is correct that each offense demands more than a nonspecific promise to undertake official action on any future matter beneficial to the payor. While this instructional error was harmless with respect to three of Silver's seven counts of conviction, the evidence was insufficient to sustain a guilty verdict against Silver on three other counts.

We therefore REVERSE IN PART, VACATE IN PART, AFFIRM IN PART, and REMAND for further proceedings consistent with this opinion. Judge Lohier concurs in a separate opinion.

United States v. Silver, 2018 U.S. App. LEXIS 36928 (2d Cir., Oct. 3, 2018)

CORE TERMS

promise, official act, payor, extortion, bribery, referrals, quid pro quo, official action, honest, Mesothelioma, counts, public official, bribe, Assembly, convicted, color of right, concrete, real estate, instructions, limitations period, jury instructions, money laundering, funding, argues, beyond a reasonable doubt, district court, particular kind, Developers, harmless, governmental powers

Criminal Law & Procedure, Racketeering, Extortion, Elements, Criminal Offenses, Fraud, Standards of Review, De Novo Review, Jury Instructions, Harmless & Invited Error, Hobbs Act, Abuse of Public Office, Illegal Gratuities, Fraud Against the Government, Mail Fraud, Fraud, Wire Fraud, Jury Instructions, Particular Instructions, Elements of Offense, Defenses, Illegal Gratuities, Postconviction Proceedings, Motions for New Trial, Appeals, Remand & Remittitur, Banking Law, Money Laundering