Does reversal of Silver bribery conviction bode well for Skelos and son?

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Nearly two years after former New York State Assembly Speaker Sheldon Silver was convicted on corruption charges for allegedly receiving roughly $4 million in bribes in return for official actions, the United States Court of Appeals for the Second Circuit in Manhattan last week reversed the decision.

In light of a recent Supreme Court decision last year involving former Virginia Governor Robert McDonnell, which narrowed the definition of what constitutes an “official act” in corruption cases, a three-judge panel said it could not conclude with certainty that a jury with a proper understanding of the term would have convicted the Democrat.

Chief Justice John Roberts wrote in regards to the McDonnell case that the court’s concern was with “the broader legal implications of the government’s boundless interpretation of the federal bribery statute.” The court determined that going forward, “setting up a meeting, calling another public official or hosting an event does not, standing alone, qualify as an official act.’”

The decision could be a good sign for former State Senate Majority Leader Dean Skelos, a Rockville Centre resident who was also convicted on federal corruption charges brought against him by U.S. Attorney Preet Bharara and sentenced to five years in prison last year, about a week after Silver was sentenced to 12 years behind bars. Skelos’ son Adam was also sentenced to 6 ½ years in prison.

The Skeloses were found guilty of bribery, extortion and conspiracy, and have appealed the decision. At the center of the case was a contract for an Arizona-based company, AbTech, that Bhrarara claimed Skelos used his influence to have passed in Nassau County. Skelos allegedly helped secure more than $200,000 in payments for his son, Adam, who was working for the company at the time. The indictment added that the elder Skelos helped secure $100,000 in health benefits and payments for his son from a medical malpractice insurer for which he did no work.

The father and son have been out of prison on bail since Aug. 4, when a court order from U.S. District Judge Kimba Wood indicated that their appeal raised “a substantial question whether jurors received the correct instructions to make an accurate ruling.”

One of Skelos’s lawyers, Alexandra Shapiro, told three appeals judges in May that her client deserved a new trial because of flawed jury instruction, Newsday reported, based on the Supreme Court’s ruling in the McDonnell case.

“Jury instructions are one of the things that appellate lawyers salivate over,” Daniel Russo, chairman of the Nassau County Bar Association Criminal Law Committee, told the Herald. In addition to sufficiency of evidence, and the prosecutors’ actions during a trial, he noted that “another key component to a good appellate review is what did the judge instruct the jury on.”

Russo added that he thinks the new definition of an official act will make it harder for prosecutors to bring public corruption cases. “That’s not necessarily just let’s set up a meeting between my of counsel law firm and this doctor who sees a ton of Mesothelioma patients,” Russo said of official acts, using an example from the Silver case. “It’s got to be more than that. It’s going to be tough.”

He also said he thinks that when the Supreme Court sets a new precedent, other courts have a duty to relay that revision to jurors immediately after.

State Sen. Todd Kaminsky, a former federal prosecutor who helped convict State Senate Majority Leader Pedro Espada, Jr., Congressman Michael Grimm and Assemblyman Jimmy Ming, quickly called for reform after the reversal, reiterating his stance to allow local district attorney offices — in addition to federal prosecutors — to bring corruption cases.

“Voters have no doubt that corruption exists on all levels of government and today’s decision is one more striking blow to their faith in honest government,” Kaminsky said in a statement on July 13. “It is time for our state to step up.”

Anthony M. LaPinta, a white collar criminal defense attorney from Hauppauge who has defended many political corruption cases, also weighed in. “It is important to note that the appeals court did not find that Silver was not guilty of the charges,” LaPinta told the Herald. “They ruled that Silver's conduct must be measured by a jury under the new definition of an official act.” Federal prosecutors said they would seek a new trial for Silver,.

LaPinta, who is also an adjunct professor at Touro Law School, added that because the Supreme Court ruling requires an official act to be formal and concrete government actions or decisions, like holding a hearing or filing a lawsuit, he thinks a similar decision will be made for the Skeloses.

“As the Skelos case also involved allegations of arranging meetings and attending events, I fully expect that the Second Circuit will overturn that conviction as well and require a new trial,” he said. “The recent Silver decision will also effect Adam Skelos' conviction because a conspiracy cannot exist based on non criminal acts.”

The U.S. Attorney’s office chose not to comment on the Skelos case, and two of Skelos’ lawyers had not responded to the Herald’s calls at press time.