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Speaker 1: Thank you. Charlie Sheldon Silver, the once powerful Speaker of

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Speaker 1: the New York State Assembly, has been given a reprieve

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Speaker 1: by the Second Circuit Court of Appeals. Silver was convicted

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Speaker 1: of bribery in twenty fifteen for taking four million dollars

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Speaker 1: in kickbacks and was sentenced to twelve years in prison.

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Speaker 1: He was at on bail pending his appeal, which he won. Today,

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Speaker 1: the Manhattan Appeals Court tossed Silver's conviction because the instructions

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Speaker 1: given to the jury did not comport with the Supreme

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Speaker 1: Court ruling last year. Silver does not have a get

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Speaker 1: out of jail free card, though the Manhattan US Attorney,

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Speaker 1: the acting Manhattan U s Attorney, says Silver will be retried.

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Speaker 1: Joining me to discuss the case and its repercussions is

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Speaker 1: former federal prosecutor Robert Mintz, the head of the white

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Speaker 1: collar and criminal investigations practice at McCarter and English, and

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Speaker 1: Jeffrey Bell and a professor at William and Mary Law School, Bob.

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Speaker 1: The Supreme Court case that caused this reversal was the

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Speaker 1: case involving Bob McDonald, a former Republican governor of Virginia.

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Speaker 1: What did the court rule there that case June was

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Speaker 1: one that really had a strong impact on the government's

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Speaker 1: ability to bring these types of honest services fraud cases

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Speaker 1: because what it did is it redefined what constituted an

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Speaker 1: official act. In that case, the facts were pretty straightforward.

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Speaker 1: It was clear that the governor of Virginia, Governor Robert McDonald,

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Speaker 1: had had received a hundred and seventy five thou dollars

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Speaker 1: in loans and gifts from a business men, and in

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Speaker 1: exchange for that, what he did is he set up

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Speaker 1: meetings and provided the use of the Governor's mansion in

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Speaker 1: order to try to promote this nutritional supplement on behalf

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Speaker 1: of the businessmen who had given him those gifts. And

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Speaker 1: the question was whether that type of conduct, setting up meetings,

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Speaker 1: providing the governor's mansion, whether that type of conduct constituted

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Speaker 1: what what is an official act under the statute on

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Speaker 1: The Supreme Court held that it did not, that it

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Speaker 1: was too close to the line of what would be

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Speaker 1: normal constituents and services, and therefore that conviction was overturned. Jeff,

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Speaker 1: is this reversal really a surprise? Former Manhattan US Attorney

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Speaker 1: Pre Barrara said in the panel discussion in October that

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Speaker 1: the McDonald case might muck up the verdict in Silver, Yes,

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Speaker 1: I agree it did. It was likely it would muck

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Speaker 1: it up, and it did muck it up, and I

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Speaker 1: agree with you that it was not a surprise. I mean,

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Speaker 1: the lower courts we're using a jury instruction to define

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Speaker 1: official act throughout the country that was much looser than

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Speaker 1: the jury instruction that has to come now after the

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Speaker 1: McDonald case. Essentially, official act was defined prior to McDonald

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Speaker 1: as any act taken in an official capacity, and after McDonald,

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Speaker 1: as Bob says, there's a much narrower definition. And so

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Speaker 1: the jury is that decided cases in this interim period.

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Speaker 1: We're all using a jury instruction that the McDonald case

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Speaker 1: says was too friendly to the government. And so the

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Speaker 1: defendants and those cases have a very strong argument on appeal,

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Speaker 1: just like Mr Silver did, that they should get a

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Speaker 1: new trial with the proper jury instruction, Bob, Are the

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Speaker 1: facts in this case that the prosecution presented different enough

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Speaker 1: from the McDonald case. Is there enough of a quid

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Speaker 1: pro quo and official acts that they have a good

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Speaker 1: chance of getting a conviction the second time around? Well,

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Speaker 1: the facts are very different. The case of Sheldon Silver

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Speaker 1: essentially involved two criminal schemes where the governmental legs he

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Speaker 1: abused his position for personal gain. One of them involved

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Speaker 1: UH performing favers for a doctor in exchange for the

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Speaker 1: doctor referring methothelium with patients to Silver's law firm, and

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Speaker 1: the other UH involved to real estate developers who Silver

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Speaker 1: was allegedly providing favors for again in exchange for referral fees,

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Speaker 1: and as a result, according to the government, these schemes

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Speaker 1: produced about million dollars in referral fees for Silver. And

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Speaker 1: the question in these in each of these cases is

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Speaker 1: with the new instruction that would have to be given

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Speaker 1: pursuant to the McDonald case, would the jury still have

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Speaker 1: convicted Sheldon Silver. And we're going to find out, obviously,

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Speaker 1: because he's going to be retried according to the U. S.

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Speaker 1: Attorney UM in the Southern District. But the facts I

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Speaker 1: think are pretty strong here. Uh. There are some issues

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Speaker 1: about statued limitations because some of the conduct occurred outside

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Speaker 1: the five year Statute, and there'll be some issues about

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Speaker 1: whether all of that comes in UM. But again turns

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Speaker 1: on whether the favors that were performed by Silver constitute

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Speaker 1: official acts within this narrower definition that the McDonald court

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Speaker 1: handed down Jeff. This ruling comes just days after the

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Speaker 1: same court upheld the bribery conviction of former Brooklyn Assemblyman

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Speaker 1: William Boylan Jr. On similar grounds. Questioning the jury instructions,

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Speaker 1: what was the difference between the two cases? All right, well,

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Speaker 1: this this is a question I'm not prepared for us.

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Speaker 1: I'm not gonna answer this one, but I will. I

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Speaker 1: wanted to comment on your previous question to Bob Mints

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Speaker 1: on on what will happen going forward with the Silver case.

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Speaker 1: If you remember, in the McDonald case, the attorneys that

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Speaker 1: prosecuted the case wanted to go forward on that case

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Speaker 1: and retry him as well, and it was according to leaks,

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Speaker 1: it was the Department of Justice Main headquarters that overruled that.

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Speaker 1: And so I think there's still we're still to see

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Speaker 1: if the case against Silver as were tried. I unfortunately

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Speaker 1: don't know the facts of the case of your reference.

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Speaker 1: I can't comment on the differences there. Bob, Do you

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Speaker 1: know that case. It's not quite as as well known

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Speaker 1: as the Silver case. But let's take the conviction of

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Speaker 1: former New York Senate leader Dean Skelos. Is that in

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Speaker 1: jeopardy now because he was convicted on extortion, bribering conspiracy charges,

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Speaker 1: and he too is cited the McDonald ruling in his appeal,

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Speaker 1: which is pending. Yeah, I mean, every single case that

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Speaker 1: has come down own um, where there was a conviction

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Speaker 1: prior to McDonald, you can bet that defense lawyers are

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Speaker 1: going to argue that those instructions um were flawed. And

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Speaker 1: it's important to bear in mind that even in this

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Speaker 1: case where the conviction was reversed, the Supreme Court, uh,

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Speaker 1: the Second Circuit rather is not saying that there was

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Speaker 1: insufficient evidence to gain a conviction. They're just saying that

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Speaker 1: a reasonable jury might have gone either way if the

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Speaker 1: instructions had been properly delivered. So I think with with

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Speaker 1: the with the Silver case, and and with Dean Skelots,

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Speaker 1: those are cases that, um, we're just gonna have to

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Speaker 1: see how they play out. I think it's very difficult

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Speaker 1: to predict whether there'll be a conviction again with the

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Speaker 1: narrower instructions that are now mandated by the McDonald decision. Jeff,

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Speaker 1: can you explain in simple terms how much narrower the

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Speaker 1: the instructions are now I mean, and and what the

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Speaker 1: purpose of of the narrowing is sure. The Supreme Court,

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Speaker 1: I think the way they looked at the McDonald case

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Speaker 1: was they were alarmed that the jury instruction in that

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Speaker 1: case that said if you give a politician any money

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Speaker 1: in exchange for official acts, and if you would define

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Speaker 1: official act as anything the government official does in an

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Speaker 1: official capacity, that it looked like that would make almost

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Speaker 1: every politician at jeopardy for being criminally prosecuted, because politicians,

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Speaker 1: as we unfortunately know, are constantly receiving money from donors

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Speaker 1: and the like, and they're then providing access and favors

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Speaker 1: to those donors. And it seemed like the jury instructions

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Speaker 1: allowed juries to convict if you gave a politician some

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Speaker 1: money and the politician gave you access in a meeting

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Speaker 1: or something like that that other constituents did not receive.

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Speaker 1: The Supreme Court kind of blinked at that. Even though

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Speaker 1: the statute that they were working under could have covered

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Speaker 1: that conduct, Streme Court didn't didn't want that to be

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Speaker 1: the case, and so they interpreted the statute more narrowly

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Speaker 1: and said, it's not enough to just get access, to

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Speaker 1: just get a meeting, to just get a phone call

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Speaker 1: from your politician. When you give them money, it has

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Speaker 1: to be that the politician promised to give you some

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Speaker 1: actual official result, right, So like there is something, I'm sorry,

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Speaker 1: I'm gonna have to I'm gonna have to stop me there.

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Speaker 1: I'm sure we'll be discussing this McDonald case over and

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Speaker 1: over again. Thank you, Jeff Bell and Professor William and

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Speaker 1: Mary Law School and Bob Man's head of the White

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Speaker 1: Color and Criminal Investigations Unit at McCarter and English