United States v. Silver

• Decision Date: 17 September 2018
• Docket Number: 15-CR-93 (VEC)
• Parties: UNITED STATES OF AMERICA, v. SHELDON SILVER, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. SHELDON SILVER, Defendant.

15-CR-93 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 17, 2018

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, United States District Judge:

On May 11, 2018, a jury found Sheldon Silver, former Speaker of the New York State Assembly, guilty on two counts of honest services mail fraud, 18 U.S.C. §§ 1341, 1346, two counts of honest services wire fraud, 18 U.S.C. §§ 1343, 1346, two counts of extortion under color of official right, 18 U.S.C. § 1951, and one count of money laundering, 18 U.S.C. § 1957. On July 27, 2018, Silver was sentenced to seven years imprisonment, fined $1.75 million, and ordered to forfeit the proceeds of the crimes. See Judgment [Dkt. 450]. Silver moves to continue bail and to stay the fine and forfeiture orders pending appeal. See Notice of Motion [Dkt. 455]; Memorandum of Law in Support of Motion to Continue Bail and to Stay Financial Penalties Pending Appeal ("Mem.") [Dkt. 456]. For the following reasons, Silver's motion is denied in part.

BACKGROUND¹

The Court assumes the parties' familiarity with the evidence introduced at trial as well as the procedural history of the case and, therefore, offers only a brief overview of the crimes and the procedural history of the case. Silver orchestrated two criminal schemes that allowed him tocorruptly profit from his position as the Speaker of the New York State Assembly and as an elected Assemblyman. As part of the criminal schemes, Silver received referral fees from law firms in exchange for official actions that benefitted third parties. One scheme involved referrals from Dr. Robert Taub, a physician who specialized in treating patients with asbestos-related illnesses. His patients' valuable legal claims were referred to a law firm with which Silver was affiliated, and Silver profited from lucrative resolutions of those patients' claims. The other scheme involved steering two real estate developers' tax certiorari business to a second law firm with which Silver had a referral arrangement. Silver also invested the proceeds of his schemes into private, exclusive investment vehicles in violation of federal anti-money laundering statutes. See, e.g., Opinion and Order, August 26, 2016 ("First Bail Op.") [Dkt. 325] at 1-6.

After a prior conviction was overturned on appeal, see Mandate [Dkt. 341], Silver was convicted on all counts and was sentenced to seven years of imprisonment on counts one through seven, all to run concurrently. See Judgment. The Court also ordered Silver to pay a fine of $1,750,000 ($250,000 on each count) and to forfeit an amount to be determined at a later date, but that would be no less than $3,739,808.53. See id. The Court ordered Silver to surrender to the Bureau of Prisons on October 5, 2018, and to pay $1,200,000 of the financial penalty no later than September 21, 2018. See id. The balance of the fine ($550,000) was due in monthly installments of no less than $5,846, starting August 15, 2018. See id.

DISCUSSION

In support of his motion to continue bail, Silver primarily argues that the jury charge was erroneous because it failed to charge that, as to the existence of a quid pro quo for the honest services fraud and color of official right extortion counts, "the government [was required to] prove at least an implicit agreement" between Silver and his counterparts for each scheme. SeeMem. at 1, 5-12. Silver also moves pursuant to Federal Rules of Criminal Procedure 38(c) and 32.2(d) to stay the financial penalty and forfeiture order pending appeal; he asserts that he has a meritorious appeal and that imposing the penalties now would irreparably harm him and his wife because they would, inter alia, need to sell their homes in order to pay the fine. Id. at 2, 15-17. The Court finds that the continuation of bail pending appeal and a stay of the financial penalties are not warranted. The Court will, however, modify the terms pursuant to which Silver must pay the fine.

I. Legal Standard

A convicted defendant who has been sentenced to imprisonment must be detained unless the Court finds "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released [and] that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in . . . reversal [or] an order for a new trial . . . ." 18 U.S.C. § 3143(b)(1)(A)-(B). It is the defendant's burden to rebut the presumption in favor of detention by clear and convincing evidence. See, e.g., United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004) (citations omitted). If a defendant meets this substantial burden, bail pending appeal is mandatory. See id. (quoting 18 U.S.C. § 3143(a) for the post-verdict, pre-sentencing context; the mandatory language in 18 U.S.C. § 3143(b) for the post-sentencing context is identical).

The latter part of the second requirement—that the appeal raises a substantial question of law or fact likely to result in a reversal or order for a new trial—does not mean that the district court must "predict the probability of reversal." United States v. Randell, 761 F.2d 122, 124 (2d Cir. 1985) (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)) (internal quotation marks omitted). Instead, the requirement goes to "the significance of the substantial issue to theultimate disposition of the appeal." Id. (quoting Miller, 753 F.2d at 23) (internal quotation marks omitted). To determine whether this requirement is satisfied, a court must first determine whether the question on appeal is substantial. Id. at 125. A substantial question is more than "frivolous" and "is a close question or one that very well could be decided the other way." Id. (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)) (internal quotation marks omitted). If the question is substantial, a court "must then consider whether that question is 'so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.'" Id. (quoting Miller, 753 F.2d at 23). Put differently, the appeal must raise a substantial question that, if decided in a defendant's favor, will likely result in a reversal or order for a new trial as to all counts for which a defendant has been sentenced to prison. Id. at 126.

The primary focus of Silver's motion is the jury charge. A jury charge is in error if the "charge 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)) (internal quotation marks omitted). A court must review the charge as a whole to determine whether a defendant was prejudiced and whether the charge "adequately reflected the law and would have conveyed to a reasonable juror the relevant law." United States v. Mulder, 273 F.3d 91, 105 (2d Cir. 2001) (quoting United States v. Jones, 30 F.3d 276, 284 (2d Cir. 1994)) (internal quotation marks omitted). "An erroneous instruction, unless harmless, requires a new trial." United States v. Bah, 574 F.3d 106, 114 (2d Cir. 2009) (quoting Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994)) (internal quotation marks omitted). An error is harmless if it is clear beyond a reasonable doubt that a rational jury would have convicted if it had been properly charged. Id. (quoting Quattrone, 441 F.3d at 177).

As for whether delay is the purpose of an appeal, courts often make such determinations based on the facts and procedural history of the case, and tie this determination to whether the appeal raises a substantial question of law. See, e.g., United States v. Tischler, No. S2 11 CR 424 NRB, 2013 WL 4535431, at *9 (S.D.N.Y. Aug. 23, 2013) ("For the foregoing reasons, we find that each of the issues Tischler proposes to raise on appeal . . . fails to raise a substantial question of law or fact likely to result in a reversal or an order for a new trial. Indeed, we conclude that the purpose of his motion is precisely that which the statute forbids, namely, to delay the commencement of his term of imprisonment.") (citing Randell, 761 F.2d at 125); United States v. Bhindar, No. 07 CR 711-04 (LAP), 2010 WL 2633858, at *6 (S.D.N.Y. June 30, 2010) ("As set forth above, nearly two years passed between Bhindar's guilty plea and his sentencing. This delay was mostly due to the fact that Bhindar changed counsel three times. With this history, the Court is not persuaded by Bhindar's current counsel's claim that the instant motion is not for the purpose of delay.") (internal quotation marks and citation omitted); United States v. Ciccone, No. 07 CR. 399 (DLC), 2008 WL 2498242, at *1 (S.D.N.Y. June 19, 2008) ("The defendant has not carried this burden; he has identified no substantial question that is likely to result in a change to his sentence. This motion is simply brought for purpose of delay."). See also United States v. Santiago, 695 F. Supp. 1490, 1492 (S.D.N.Y. 1988) ("[W]here there exists no particular evidence that the stay is sought only for delay[,] this Court's determination of whether the request for a stay is merely a delay tactic is tied to its determination of whether the issues to be raised on appeal are substantial and whether they would likely result in reversal.").

For all the reasons stated in Silver's motion, and as determined after Silver's first trial, the Court finds by clear and convincing evidence that Silver is unlikely to flee or pose a dangerto the community. See Mem. at 3-4; First Bail Op. at 9. Thus, the issue to be decided is whether there is a substantial question that the charge was erroneous and, if so, whether there is likely to be a reversal or a new trial ordered. The Court must also determine whether Silver has proven that the purpose...