United States v. Silver
103 F. Supp. 3d 370
S.D.N.Y.2015Background
- Sheldon Silver, then New York Assembly Speaker, was charged by a sealed 35‑page complaint (Jan. 21–22, 2015) with honest‑services fraud, conspiracy, and extortion; complaint unsealed and Silver arrested and arraigned Jan. 22, 2015.
- U.S. Attorney Preet Bharara and the FBI held a Jan. 22 press conference and issued a press release and tweets describing the allegations and condemning a broader "culture of corruption" in Albany; remarks sometimes went beyond reciting allegations and used strong moral language.
- The U.S. Attorney later discussed the case in a Jan. 23 speech and in a Feb. 12 MSNBC interview; media coverage was extensive.
- Silver moved to dismiss the indictment (or alternatively to poll the grand jury / disclose grand jury minutes), arguing the U.S. Attorney's extrajudicial statements prejudiced the grand jury and violated local/DOJ/ethical rules that presume prejudice.
- The Government defended its use of a complaint, the timing/processing of the surrender/arrest, and argued its public statements were within prosecutorial leeway and did not influence the grand jury.
- The Court denied the motion: it criticized the Government's rhetoric and timing but concluded Silver did not show that the U.S. Attorney's statements substantially influenced the grand jury or that a particularized need for secrecy disclosure existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment should be dismissed for prejudicial extrajudicial statements | Bharara's comments (press conference, speech, tweets, interview) presumptively prejudiced grand jury and violated rules; dismissal or sanction required | Statements were permissible discussion of facts/allegations and did not substantially influence the grand jury; dismissal is drastic and unwarranted | Denied — no evidence statements substantially influenced the grand jury; dismissal is an extreme remedy not justified here |
| Whether grand jury minutes should be disclosed or grand jurors polled | Disclosure/polling needed to determine whether grand jurors were improperly influenced | Grand juries presumptively regular; defendant failed to show particularized need outweighing secrecy | Denied — speculative claims insufficient; no particularized need shown |
| Whether pre‑indictment publicity (including prosecutor‑generated publicity) justifies a different standard | Prosecutor‑initiated publicity is inherently more harmful and should trigger presumptive prejudice | Precedent does not treat government‑generated publicity as automatically dispositive; impact must be shown | Held for Government — source of publicity alone does not compel dismissal; must show substantial influence or actual prejudice |
| Whether use of a detailed complaint and timing/arrangement of arrest/perp walk warranted relief | Filing a lengthy complaint and orchestrating surrender/arraignment maximized publicity and prejudiced Silver | Use of complaint is procedurally proper; surrender arrangements minimized spectacle; leaks speculative and not shown to prejudice | Held for Government — procedural choices permissible; no demonstrated prejudice from these practices |
Key Cases Cited
- Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (dismissal for nonconstitutional error appropriate only if violation substantially influenced the grand jury or grave doubt exists about the indictment's independence)
- United States v. Mechanik, 475 U.S. 66 (1986) (discussion of narrow supervisory rules protecting grand jury integrity)
- Williams v. United States, 504 U.S. 36 (1992) (limits on supervisory powers to dismiss indictments; only for a few, clear rules)
- United States v. Nunan, 236 F.2d 576 (2d Cir. 1956) (grand juries are not passive like petit juries; adverse publicity alone does not show grand jury prejudice)
- United States v. Burke, 700 F.2d 70 (2d Cir. 1983) (defendant entitled to impartial grand jury; must show particularized proof of irregularity)
- United States v. Myers, 510 F. Supp. 323 (E.D.N.Y. 1980) (even extensive government‑generated pretrial publicity and improper disclosures did not require dismissal; need to examine actual prejudicial effect)