United States v. Silver - 103 F. Supp. 3d 370 (S.D.N.Y. 2015)

Rule:

Dismissal of an indictment because of a defect in the grand jury proceedings is a drastic remedy that is rarely used. The district court's authority to dismiss an indictment, whether to eliminate prejudice or to deter official misconduct, is narrowly circumscribed to instances where the misconduct at issue amounts to a violation of one of those few, clear rules which were carefully drafted and approved by the Supreme Court and by Congress to ensure the integrity of the grand jury's functions.

Facts:

On January 21, 2015, the Government filed a 35-page, single-spaced, sealed Complaint before Chief Magistrate Judge Maas, charging Defendant Silver, the then-Speaker of the New York Assembly, with honest services fraud, conspiracy and extortion. Finding probable cause, Magistrate Judge Maas issued an arrest warrant. In the weeks prior to the issuance of the arrest warrant, there had been numerous newspaper articles reporting on the U.S. Attorney's investigation, including lengthy investigative journalism pieces on Silver's relationship with Weitz & Luxenberg and with Goldberg & Iryami. Shortly after midnight on January 22, 2015, although the Government's Complaint had not yet been unsealed, the press began reporting that that Silver would be arrested imminently along with the substance of the charges against him. Pursuant to an arrangement between Silver's attorneys and the U.S. Attorney's Office, on the morning of January 22, 2015, Silver surrendered to federal authorities at the Jacob J. Javits Federal Building, where he was processed and then driven in an unmarked car to the basement of the federal courthouse. Silver was presented to Magistrate Judge Maas and granted bail.

Later that day, the U.S. Attorney for the Southern District of New York and the FBI Special Agent-in-Charge held a press conference, during which the U.S. Attorney described the substance of the Government's charges against Silver, while also criticizing the "the show-methe- money culture of Albany." During the press conference, the U.S. Attorney dutifully noted that the charges at that point were only allegations. Certain portions of the U.S. Attorney's comments, however, could reasonably have been interpreted to reflect the U.S. Attorney's personal views as to Silver's character or guilt with respect to the charges filed against him. For members of the media who missed the press conference, the U.S. Attorney's Office also issued a press release. The press release highlighted some of the U.S. Attorney's most salient comments, in particular regarding the relationship between the charges against Silver and a broader "culture of corruption" in Albany. At the same time, the press release referred to the charges as "allegations," and closed by stating that "the charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty." In addition to the press release, following the press conference, the U.S. Attorney's Office transmitted several of the U.S. Attorney's comments via Twitter, as well as a previously-scheduled speech at New York Law School that was broadcast live on local television and covered by the press the following day. A couple of weeks later, but still before Silver was indicted, the U.S. Attorney was interviewed on MSNBC. When asked about the recent arrest of "one of the most powerful Democrats in New York," the U.S. Attorney discussed the importance of public corruption prosecutions generally.

On February 19, 2015, the grand jury returned the Indictment charging Silver with honest services mail fraud, honest services wire fraud and extortion. On February 24, 2015, Silver filed the instant Motion claiming that, through his conduct, the U.S. Attorney has "caused [him] irreparable harm.

Issue:

Were the U.S. Attorney’s comments sufficiently prejudicial to overcome the presumption of regularity accorded to grand jury proceedings and to warrant dismissal of the indictment?

Answer:

No.

Conclusion:

While the Court did not endorse the Defendant's view that the U.S. Attorney's comments reflected his "uncensored views" as to Silver's guilt and character, neither did it accept the Government's suggestion that any prejudicial effect of otherwise improper comments is magically dispelled by sprinkling the words "allege(d)" or "allegation(s)" liberally throughout the press conference or speech, or by inserting a disclaimer that the accused is "innocent unless and until proven guilty" at the end of an otherwise improper press release. In particular, the Court was troubled by remarks by the U.S. Attorney that appeared to bundle together unproven allegations regarding Silver with broader commentary on corruption and a lack of transparency in certain aspects of New York State politics. In this regard, the Court found that it would not be unreasonable for members of the media or the public to interpret some of the U.S. Attorney's statements — for example, "[p]oliticians are supposed to be on the people's payroll, not on secret retainer to wealthy special interests they do favors for" — as a commentary on the character or guilt of Silver. The rules afforded prosecutors considerable latitude to speak about the facts of a case, the offenses charged, and even "the public policy significance of a case," to the extent that such discussion is in furtherance of "law enforcement goals." Remarks that associate the accused with a long line of convicted criminals or a broader pattern or recognized wrongdoing, however, were of concern specifically because they tend to blur the distinction between legitimate public commentary and improper opinion. Lastly, the Government's argument that the timing of the U.S. Attorney's speech at the New York Law School event was merely coincidental to be pure sophistry. While the New York Law School speaking engagement was apparently scheduled long before Silver's arrest, it was the Government that decided when to arrest Silver. Given the fact that the U.S. Attorney apparently wanted to address the topic of public corruption in his speech, a far more prudent course — and one that would have been far more respectful of the Defendant's presumption of innocence and fair trial rights — would have been to delay the arrest until after the U.S. Attorney's speech and for the U.S. Attorney to stay focused on politicians who have actually been convicted. Nevertheless, dismissal of the Indictment was not appropriate. Even if the Court were to accept the Defendant's view that the U.S. Attorney's comments were improper, there is no evidence that the U.S. Attorney's comments "substantial[ly] influenced" the grand jury's decision to indict. The Court reached this conclusion not in a vacuum but in the wake of established precedent holding that the existence of negative pretrial publicity is generally not sufficient to show substantial influence or actual prejudice. For example, in United States v. Nunan, the Second Circuit affirmed the district court's denial of a motion to dismiss the indictment, or alternatively to inspect the grand jury minutes. Despite there having been "sensational," "untrue[,] and unwarranted" pre-indictment publicity, the court found that, unlike a petit jury, the grand jury "is not confined to a passive role" and therefore presumptively has access to the media without being prejudiced in the absence of evidence to the contrary. Other cases reflect the same basic reasoning.