948 F.3d 538
2d Cir.2020Background
- Sheldon Silver, long‑time Speaker of the New York State Assembly, worked part‑time as a lawyer and received referral fees from law firms while in office.
- The Government charged two alleged bribery schemes: (1) Mesothelioma Scheme — referrals from physician Dr. Taub allegedly exchanged for state grants and other official help; (2) Real Estate Scheme — developer referrals in exchange for influence on real‑estate legislation and PACB approvals. A related money‑laundering allegation involved investing those proceeds.
- Silver was tried, convicted, and his convictions were vacated on appeal in Silver I due to erroneous jury instructions under McDonnell v. United States; the Government retried him and he was again convicted on seven counts (honest‑services mail and wire fraud and Hobbs Act extortion for each scheme, plus money laundering).
- On second appeal Silver argued (1) the crimes require a meeting‑of‑the‑minds quid pro quo agreement and (2) McDonnell abolished the “as the opportunities arise” theory (i.e., the official must identify the particular act at time of promise). He also challenged sufficiency of the evidence and consequences for the money‑laundering count.
- The Second Circuit held there is no meeting‑of‑the‑minds requirement, but McDonnell requires that, at the time of the corrupt promise/acceptance, the official understand the particular question or matter (a focused, concrete matter) to be influenced; applied that rule to the schemes and verdicts.
- Holding summary: convictions for the Mesothelioma counts (Counts 1s, 2s, 5s) reversed and those counts ordered dismissed with prejudice; convictions for the Real Estate counts (Counts 3s, 4s, 6s) and the money‑laundering count (Count 7s) affirmed; remand for resentencing and further proceedings as appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hobbs Act extortion and honest‑services fraud require a meeting‑of‑the‑minds quid pro quo | Government: proof that official accepted payments knowing they were given in return for official action suffices; no common‑intent agreement is required | Silver: convictions require a bilateral corrupt agreement (a meeting of the minds) between payor and official | Held: No meeting‑of‑the‑minds required; unilateral promise/awareness by official suffices (quid pro quo may be implicit or promised) |
| Whether McDonnell eliminated the “as the opportunities arise” theory (must identify particular act at time of promise) | Government: Ganim’s “as the opportunities arise” survives McDonnell and need not identify a particular act at the time of payment | Silver: McDonnell requires the official to identify the particular act at the time of acceptance/promise | Held: Ganim survives but McDonnell requires the official to understand at the time of the promise the particular question or matter (focused/concrete) to be influenced; identification of the specific means or act is not required |
| Whether the evidence sufficed (given instruction error and statute of limitations) for the Mesothelioma counts | Government: testimony and post‑2007 referrals show an ongoing quid pro quo under the “as opportunities arise” theory | Silver: post‑2007 conduct lacked any promise to influence a focused, pending matter; HCRA grants and some acts are time‑barred | Held: Evidence insufficient as to Mesothelioma counts within the limitations period; those convictions vacated and indictment dismissed with prejudice |
| Whether money‑laundering conviction (18 U.S.C. §1957) falls if underlying counts vacated | Government: laundering conviction valid because (a) other convictions remain and (b) laundering transactions occurred within limitations period; underlying predicate need not be previously convicted | Silver: money‑laundering depends on underlying convictions and should fall if those are vacated | Held: Money‑laundering conviction affirmed — laundering transfers occurred within limitations and predicate conduct need not have been convicted previously |
Key Cases Cited
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (narrows "official act" to a decision/action on a specific, focused question or matter)
- United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) (approves "as the opportunities arise" theory: promise to exercise particular kinds of influence as opportunities arise)
- McCormick v. United States, 500 U.S. 257 (1991) (quid pro quo in political contributions requires promise/undertaking to perform official act)
- Evans v. United States, 504 U.S. 255 (1992) (extortion under color of right equated with taking a bribe; implicit promises can satisfy quid pro quo)
- Ocasio v. United States, 136 S. Ct. 1423 (2016) (consent for extortion differs from conspiracy mens rea; official may conspire with extorted party if common purpose exists)
- Rybicki, 354 F.3d 124 (2d Cir. 2003) (mens rea for honest‑services fraud is intent to deprive another of honest services)
- Myers, 692 F.2d 823 (2d Cir. 1982) ("being influenced" describes the intention conveyed to the briber; official's conveyed intent controls)
- Sun‑Diamond Growers v. United States, 526 U.S. 398 (1999) (illegal‑gratuities nexus requirement distinct from bribery quid pro quo)
- Skilling v. United States, 561 U.S. 358 (2010) (honest‑services statute limited to bribes and kickbacks to avoid vagueness)
- United States v. Silver (Silver I), 864 F.3d 102 (2d Cir. 2017) (earlier vacatur for erroneous jury instruction under McDonnell)