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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. Although neither offense requires 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.
Sheldon Silver was elected as Speaker of the New York State Assembly in 1994. During his tenure as Speaker, Silver worked part-time as a practicing lawyer, as permitted by New York law. The Government alleged that Silver used his law firm work as a vehicle to exploit his elected position for unlawful personal gain. According to the Government, Silver orchestrated two separate bribery schemes in which he received referral fees from law firms in exchange for taking official actions. The Government also charged that Silver engaged in money laundering by investing the proceeds of the bribery schemes into various private investment vehicles. The Government indicted Silver on charges of honest services mail and wire fraud, Hobbs Act extortion, and money laundering. A jury found Silver guilty on all counts. After Silver’s conviction, the Supreme Court decided McDonnell v. United States, 136 S. Ct. 2355, 2371-72, 195 L. Ed. 2d 639 (2016), which cleared the definition of an “official act” in honest services fraud and extortion under color of right charges. Relying on McDonnell, Silver appealed his conviction, arguing that the decision rendered erroneous the district court’s jury instructions defining an official act as “any action taken or to be taken under color of official authority.” According to Silver, the Hobbs Act extortion under color of official right and honest services fraud required evidence of an “agreement,” i.e., a meeting of the minds, between the alleged bribe payor and receiver. Moreover, Silver argued that the crimes required that the official understood, at the time he accepted the payment, the particular question or matter to be influenced.
The Court disagreed with Silver’s first contention and held that extortion under color of right and honest services fraud required that the official reasonably believe, at the time the promise was made, that the payment was made in return for a commitment to perform some official action. Neither crime required that the official and payor shared a common criminal intent or purpose. The Court, however, found limited merit in Silver’s second challenge. Although neither offense required advance identification of the particular act to be undertaken, they did require that the official understood – at the time he accepted the payment – the particular question or matter to be influenced. Accordingly, the judgment was reversed in part, affirmed in part, and the case remanded.