MANHATTAN (CN) – Federal prosecutors vowed Tuesday to do better at retrial after Supreme Court precedent on corruption prosecutions upended the extortion convictions of a former New York senator and his son.
Once the New York Legislature’s most powerful Republican, former Sen. Dean Skelos was convicted last year with his son, Adam Skelos, of a federal bribery charges grounded in nepotism.
Prosecutors accused the senator of milking his political connections with the state’s heaviest donor, Glenwood Management, to score work for his son, who had been hoping for extra cashflow to cover the cost of a $600,000 apartment.
A federal judge gave both Skeloses prison time, but the terms were put on hold as defense attorneys sought reconsideration of the prosecution in light of breaking Supreme Court precedent.
Just a month after the Skeloses were sentenced, the Supreme Court wiped the bribery convictions of former Virginia Gov. Robert McDonnell with the unanimous finding that political access cannot count as a benefit in a quid pro quo, the Latin expression meaning “this for that.”
Citing this outcome, a three-judge panel of the Second Circuit vacated the Skeloses’ convictions Tuesday.
Acting U.S. Attorney Joon Kim warned the Skeloses not to get too used to their freedom, noting that an error in jury instruction does nothing to diminish the government’s other evidence.
“While we are disappointed in the decision and will weigh our appellate options, we look forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos and Adam Skelos’s guilt and again give the public the justice it deserves,” Kim said in a statement. “Cleaning up corruption is never easy, and that is certainly true for corruption in New York State government. But we are as committed as ever to doing everything we can to keep our government honest. That is what we will do in this prosecution as well.”
Kim took office this year as part of President Donald Trump’s unprecedented purge of all officials appointed in the prior administration.
Though steadily disintegrating now, the anti-corruption probe that brought down Skelos had been a signature of Kim’s predecessor, former U.S. Attorney Preet Bharara.
Before vacating the Skelos convictions, the Second Circuit overturned Bharara’s conviction of former New York Assembly Speaker Sheldon Silver in July.
Harry Sandick, a former Southern District of New York assistant prosecutor, noted that the government likely is not the only party frustrated by Tuesday’s shakeup.
“The defendants spent millions for defense and have seen their careers ended based on a trial outcome that has now been reversed,” Sandick, now a partner with Patterson Belknap Webb & Tyler, said in a statement. “The District Court followed the governing law but will now have to preside over this trial again. The public is left uncertain about whether its politicians have integrity. The government must try a case again even though the Second Circuit said that the evidence of guilt it presented was abundant.”
An attorney for Skelos said they are ready to take on prosecutors again.
“Senator Skelos is grateful for the court’s careful consideration of the issues and looks forward to the next steps,” Shapiro Arato attorney Alexandra Shapiro said in an email. “We believe that as events unfold it is going to become clear that this is a case that never should have been brought.”
The senator’s son is represented by Robert Culp.
Tuesday’s summary order emphasizes the technical nature of the shakeup.
“In sum, because we cannot conclude that the instructional error as to ‘official acts’ was harmless beyond a reasonable doubt, we are obliged to vacate defendants’ convictions in their entirety and to remand the case for a new trial,” the ruling states.
The judges also specified that they elected to vacate rather than reverse the Skeloses’ convictions because their remaining challenges are, with one exception, “meritless.”
“The abundant record evidence that Dean Skelos traded his vote for legislation beneficial to PRI and Glenwood in exchange for benefits to his son — such as a $20,000 payment from Glenwood for no work by Adam Skelos and a no-show job for Adam Skelos at PRI, both at Dean Skelos’s request — is sufficient to allow a reasonable jury to infer the existence of a quid pro quo arrangement with regard to both these schemes,” the unsigned opinion states.
The lone challenge that the appeals court credited pertained to the witness testimony of Sen. Tony Avella.
“We conclude that it was error to admit his testimony that ‘assist[ing] individuals or companies in getting meetings with state agencies’ was part of the ‘official duties’ of a state senator,” the opinion states.
Avella’s improper testimony meanwhile will not alter the Skeloses’ relief.
“Because we have already concluded that the charging error warrants vacatur and remand, we need not here decide if the Avella testimony would, by itself, compel such relief,” the ruling states. “We have no doubt that the able district judge, in conducting any retrial, will not admit such testimony at odds with McDonnell.”
Sandick, the former federal prosecutor now with Patterson Belknap, emphasized the technical nature of the ruling as well.
“The court’s sufficiency analysis leaves little question that the court believes that there is plenty of evidence of guilt, but this was not sufficient to affirm given the trial record and the argument of counsel,” Sandick said in a statement.
“In any event,” the attorney added, “both Silver and Skelos will now have a second opportunity to defend themselves from the serious corruption charges that ended their careers.”
Tuesday’s ruling spurred a call for legislative reform in Nassau County, where Sen. Skelos was said to have promised a government contract to a company that would employ his son.
“After Dean Skelos was charged in 2015, my office thoroughly reviewed Nassau’s contracting processes and recommended the establishment of an independent inspector general and modern conflict-checking procedures to guard against corruption and abuse,” Nassau DA Madeline Singas said in a statement. “The vulnerabilities in Nassau County government exposed by our review remain substantially unaddressed, the Board of Ethics is conflicted and lacks a quorum, and the taxpayers are ill-served every day that our elected leaders fail to enact the reforms to prevent the corruption that continues to compromise public confidence in our government.”
U.S. Circuit Judges Ralph Winter and Reena Raggi heard oral arguments on the appeal in May, joined by U.S. District Judge Alvin Hellerstein, sitting by designation on the federal appeals court from New York’s Southern District.