MANHATTAN (CN) — Sheldon Silver won his second appellate reversal Tuesday, but the convictions left in place will do little to further delay the imprisonment of the disgraced former New York Assembly speaker.
While the Second Circuit panel declined this morning to disturb Silver’s 2018 conviction on four counts of honest services wire fraud, extortion, and monetary transactions involving crime proceeds, they did vacate three counts of honest services mail fraud and wire fraud related to an alleged cancer research referral scheme.
Fatal to the government’s case, or roughly half of it, were the instructions provided to the jury.
“Although Silver is incorrect in asserting that Hobbs Act extortion under color of right and honest services fraud require evidence of a meeting‐of‐ the‐minds ‘agreement,’ he is correct that each offense demands more than a nonspecific promise to undertake official action on any future matter beneficial to the payor,” a summary of the 84-page decision states.
Silver had been a state legislator for 21 years, a year shy of the record in New York, when he was charged in 2015 with soliciting $5 million in bribes through two no-show jobs at law firms.
Federal prosecutors alleged that the Democratic speaker had abused his office since late 2002 to steer state funds to a Columbia University researcher, Robert Taub, who referred his mesothelioma patients to Weitz & Luxenberg, a law firm specializing in asbestos-related claims.
Weitz & Luxenberg, in turn, paid more than $3 million in referral fees to Silver, who held a ceremonial position at the firm.
The bribery case had initially been a slam dunk — Silver was tried, convicted and sentenced to 12 years in prison — but an unrelated Supreme Court reversal former Virginia Governor Bob McDonnell stiffened the threshold for conviction, leading to Silver’s first Second Circuit reversal.
Silver went on trial again and again was convicted, this time sentenced to concurrent seven-year prison terms.
He must be sentenced again, though will not face a retrial after Tuesday’s partial reversal.
“[We] cannot conclude, beyond a reasonable doubt, that a rational jury would have found Silver guilty of counts related to the mesothelioma scheme had it been properly instructed on the requirements of a quid pro quo under an ‘as the opportunities arise’ theory of bribery,” U.S. Circuit Judge Richard Wesley, a George W. Bush appointee, wrote for a three-judge panel.
Silver, who turns 76 in Februrary, has remained out of custody on $200,000 bail throughout his two trials, two convictions and continuing appeals.
Jones Day attorney Meir Feder did not respond to a request for comment Tuesday morning on behalf of his client Silver.
Assistant U.S. Attorney Daniel Richenthal represented the government on appeal.
U.S. Circuit Judge Richard Sullivan, a Trump appointee, concurred in full. U.S. Circuit Judge Raymond Lohier, an Obama appointee, concurred in a separate opinion.