Silver, Like Skelos, Can Remain Free While Appealing Graft Conviction
In a search on the federal Bureau of Prisons website, the names of two familiar New Yorkers — Sheldon Silver and Dean G. Skelos — now appear.
Both were once powerful state lawmakers. Then they were convicted on corruption charges. Now they are listed with prisoner registration numbers: Mr. Silver is 71915-054; Mr. Skelos is 72196-054.
But for each man’s entry, the federal website also adds: “Not in B.O.P. custody.” And based on a court ruling on Thursday, neither man is now required to report to the authorities anytime soon as the convictions are appealed, a process that could take more than a year.
Ever since they were found guilty last year in separate trials, Mr. Silver, 72, a Manhattan Democrat who was speaker of the State Assembly, and Mr. Skelos, 68, a Long Island Republican who served as the State Senate majority leader, have moved aggressively to stave off the day that they had to begin serving their prison sentences and pay the imposed fines.
In seeking bail pending appeal, they argued that a Supreme Court decision in June that overturned the corruption conviction of former Gov. Bob McDonnell of Virginia, a Republican, had changed the law in a way that increased their chances of winning reversals.
In the ruling issued on Thursday, Judge Valerie E. Caproni of Federal District Court in Manhattan, who presided in Mr. Silver’s trial, granted his request to remain free on bail while he appeals his case. He faces a 12-year sentence for his convictions on charges of honest services fraud, extortion and money laundering.
Judge Caproni’s ruling comes three weeks after another judge, Kimba M. Wood, agreed to continue bail for Mr. Skelos and his son, Adam, 34, who was convicted along with his father, both on bribery, extortion and conspiracy charges.
Prosecutors had charged that Mr. Silver had obtained nearly $4 million in illicit payments and bribes in return for official actions that benefited a prominent cancer researcher at Columbia University and two real estate developers.
Judge Caproni, in her opinion, made it clear she believed that Mr. Silver had engaged in such conduct. “There is no question that Silver took a number of official acts — most obviously passing legislation and approving state grants and tax-exempt financing — as part of a quid pro quo” in two schemes, she wrote.
But, citing the recent McDonnell decision, she added that there was a “substantial question” whether the court’s instructions to the jury, which defined official action, were in error, and if so, whether that error was harmless.
Mr. Skelos was convicted with his son in December. Prosecutors showed that they had used the senator’s position to pressure various firms to provide the son with consulting work and other benefits. The elder Mr. Skelos faces a five-year sentence and his son received a term of six and a half years.
Judge Wood, in a brief order on Aug. 4 continuing their bail, said they had shown that their appeals presented “a substantial question regarding whether this court’s jury instructions were erroneous” in light of the McDonnell case.
The rulings come more than eight months after the three men were resoundingly convicted in two trials that unveiled a seamy culture of illicit payments and influence peddling in Albany.
The office of Preet Bharara, the United States attorney for the Southern District of New York, declined to comment on the ruling on Thursday. Mr. Silver’s lawyers, Joel Cohen and Steven F. Molo, said in a statement: “We are grateful that the trial judge agreed there is now a substantial legal question about the conviction. We look forward to vigorously pursuing Mr. Silver’s appeal.”
The ruling drew varied reactions in the legal community, where the men’s efforts to obtain bail were being watched with interest by lawyers with no involvement in the cases. Jennifer G. Rodgers, the executive director of the Center for the Advancement of Public Integrity at Columbia Law School and a former federal prosecutor, said she believed that all three men would eventually lose their appeals.
“The problem from the public’s perspective,” she said, “is that, whether or not the judges’ bail decisions were technically legally correct, leaving Silver and Skelos free feeds into the notion that these corrupt officials continue to succeed in working the system to their advantage.”
But Gerald B. Lefcourt, a veteran defense lawyer who has represented clients in corruption cases, said that the McDonnell decision might indeed offer a strong basis for appeal and that fairness dictated continuing bail for Mr. Silver and the Skeloses.
“They shouldn’t have to serve time when they may never have to,” he said. “I have no love for these men, but I do care about the system.”
To obtain bail pending appeal, a defendant must show an appeal raises a “substantial question of law or fact” that is likely to result in a conviction’s reversal.
That is why the McDonnell decision has been at the center of the current debate. In it, the Supreme Court appeared to narrow the definition of the kind of conduct or “official acts” that may serve as the basis for a corruption prosecution. The court said such conduct had to involve formal and concrete government actions or decisions, not just the setting up of meetings or making phone calls.
The Silver and Skelos defense lawyers have argued that the judges in their clients’ cases instructed the juries more broadly about what constituted an official act than may now be allowed under the McDonnell decision. As a result, they say, there is no way to tell whether the juries, in convicting the men, “improperly relied on acts that are not ‘official’ under McDonnell,” as Mr. Silver’s lawyer wrote in a court filing.
Federal prosecutors had strongly opposed the bail requests. In a recent filing in Mr. Silver’s case, Mr. Bharara’s office argued that the actions for which he was convicted fit squarely within the narrower McDonnell definition.
“McDonnell will not save Silver on appeal, nor should it entitle him to bail pending appeal,” the prosecutors said. And even if the jury instructions were erroneous in light of the McDonnell case, they said, “the error clearly would be harmless.” There was no chance, they said, that the jury’s verdict could have been based on acts that fell short of the McDonnell standard.
“The proof was overwhelming,” Mr. Bharara’s office wrote, “that in exchange for millions in personal payouts, Silver took or agreed to take actions that by any definition were ‘official’ — including securing state funding and favorable state legislation.”
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