United States v. Silver

Decision Date21 January 2020
Docket NumberDocket No. 18-2380,August Term 2018
Citation948 F.3d 538
Parties UNITED STATES of America, Appellee, The New York Times Company, NBCUniversal Media, LLC, Intervenors, v. Sheldon SILVER, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

MEIR FEDER, (Samidh Guha, James Loonam, Conor Reardon, on the brief), Jones Day, New York, NY, for Defendant-Appellant.

DANIEL C. RICHENTHAL, Assistant United States Attorney (Damian Williams, Thomas A. McKay, Sarah K. Eddy, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Before: WESLEY, LOHIER, and SULLIVAN, Circuit Judges.

Judge Lohier concurs in a separate opinion.

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 , ––– U.S. ––––, 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 , ––– U.S. ––––, 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. 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.

Because the district court’s instructions failed to convey this limitation on the "as the opportunities arise" theory, and because this error was not harmless with respect to his conviction under three counts, we vacate Silver’s convictions on Counts 1s, 2s, and 5s. In addition, because we conclude that the evidence as to the same three counts was insufficient as a matter of law to sustain a guilty verdict, we remand with directions for the district court to dismiss the indictment with prejudice as to them. However, because we find this error was harmless with respect to Silver’s conviction on Counts 3s, 4s, and 6s, we affirm his conviction on those counts.

Finally, we affirm Silver’s conviction under Count 7s for money laundering because that crime does not require the defendant to be convicted of the underlying criminal offenses, nor does it require the underlying offense to take place within the limitations period.

A. Offense Conduct1

Silver was first elected to the New York State Assembly in 1976. In 1994, he was elected Speaker of the Assembly—a position he held until his resignation in 2015.

During his tenure as Speaker, Silver worked part-time as a practicing lawyer, as permitted by New York law. See N.Y. Pub. Off. Law § 74(3)(a). 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. In one scheme, Silver performed official acts beneficial to a medical doctor who referred mesothelioma

patients to Silver’s law firm (the "Mesothelioma Scheme"). In the other, Silver performed official acts beneficial to two real estate developers who had hired a different law firm that paid referral fees to Silver (the "Real Estate Scheme"). Together, these two alleged schemes generated more than $3.5 million in referral fees for Silver. The Government also charged that Silver engaged in money laundering by investing the proceeds of the Mesothelioma and Real Estate Schemes into various private investment vehicles (the "Money Laundering Scheme").

B. Procedural History

On February 19, 2015, the Government indicted Silver on charges of honest services mail and wire fraud, Hobbs Act extortion, and money laundering. It later filed a superseding indictment charging Silver with seven counts:

• Honest Services Mail Fraud: Mesothelioma Scheme, 18 U.S.C. §§ 1341, 1346 (Count 1s);2
• Honest Services Wire Fraud: Mesothelioma Scheme, id. §§ 1343, 1346 (Count 2s);
• Honest Services Mail Fraud: Real Estate Scheme, id. §§ 1341, 1346 (Count 3s);
• Honest Services Wire Fraud: Real Estate Scheme, id. §§ 1343, 1346 (Count 4s);
Hobbs Act Extortion: Mesothelioma

Scheme, id. § 1951 (Count 5s);

Hobbs Act Extortion: Real Estate Scheme, id. § 1951 (Count 6s);

• Monetary Transactions Involving Crime Proceeds, id. § 1957 (Count 7s).

After a month-long trial, a jury found Silver guilty on all counts. He was sentenced to twelve years’ imprisonment, to be followed by two years of supervised release.

Seven weeks later, the Supreme Court decided McDonnell , which clarified the definition of an "official act" in honest services fraud and extortion under color of right charges. 136 S. Ct. at 2371–72. Vacating the conviction of former Virginia Governor Robert McDonnell, the Court held that "an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’ " that involves "a formal exercise of governmental power," is "specific and focused," and is either "pending" or "may by law be brought" before a public official. Id.

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." Silver I , 864 F.3d at 112 (emphasis and citation omitted). We agreed and remanded for retrial because the error was not harmless. Id. at 118, 124.

The Government retried Silver in April and May of 2018. The district court instructed the jury that both honest services fraud and extortion under color of right require that Silver "understood" that, in exchange for the client referrals, he was expected to "take official action" "for the benefit of" the payor "as specific opportunities arose." Special App. 30, 33. A jury again convicted him on all seven counts. The district court sentenced Silver to concurrent terms of seven years of imprisonment and three years of supervised release on each count. The court also ordered Silver to pay a fine of $1,750,000 and to forfeit $3,739,808.53. The district court entered a judgment of conviction on July 30, 2018.

This appeal followed.


Silver advances two principal arguments on appeal, both challenging the district court’s jury instructions. According to Silver, (1) the court erroneously omitted from its instructions the required element of an "agreement" between Silver and the alleged bribe payors; and (2) the "as the opportunities arise" theory of bribery is no longer valid in the wake of McDonnell , which, Silver argues, requires identification of the particular act to be performed at the time the official accepts a payment or makes a promise.3 Silver also argues that the evidence is insufficient to sustain his conviction with respect to the bribery-based counts, and, as a result, his conviction for money laundering must also be vacated.

"[W]e review a district court’s jury charge de novo , and will vacate a conviction for an erroneous charge unless the error was harmless." United States v. Nouri , 711 F.3d 129, 138 (2d Cir. 2013). A jury charge is erroneous if it "either fails to adequately inform the jury of the law, or misleads the jury as to a correct legal standard." United States v. Quattrone , 441 F.3d 153, 177 (2d Cir. 2006) (quoting United States v. Doyle, 130 F.3d 523, 535 (2d Cir. 1997) ). For erroneous instructions to be harmless, it must be "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." United States v. Bah , 574 F.3d 106, 114 (2d Cir. 2009) (quoting Quattrone, 441 F.3d at 177 ).

I. Neither Hobbs Act Extortion Under Color of Right nor Honest Services Fraud Requires a Meeting-of-the-Minds "Agreement."

Silver first argues that the district court erred in rejecting his request to instruct the jury that both extortion under color of right and honest services fraud require "a quid pro quo agreement between Mr. Silver and the alleged bribe payors." J.A. 291 (emphasis added). According to Silver, both offenses require that the bribe payor and receiver share a common corrupt intent—i.e. , a "meeting of the minds" as to the official acts to be procured by the payment. We disagree.

A. Hobbs Act...

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