United States v. Skelos
707 F. App'x 733
| 2d Cir. | 2017Background
- Dean Skelos, NY State Senate Majority Leader, and his son Adam were convicted after trial of Hobbs Act conspiracy/extortion, honest-services wire fraud, and federal-program bribery for schemes where Dean allegedly used his office to benefit companies that paid or provided no-show jobs to Adam.
- Prosecution theory emphasized quid pro quo: benefits to Adam (payments, no-show job) in exchange for Dean’s official actions (legislation, meetings, influence); the Gov’t at times argued meetings themselves were "official acts."
- After trial, the Supreme Court decided McDonnell v. United States, narrowing the meaning of "official act" to formal exercises of governmental power (a ‘‘question, matter, cause, suit, proceeding or controversy’’) and cautioning that routine constituent services (e.g., arranging meetings) are not necessarily "official acts."
- On appeal the Second Circuit reviewed jury instructions, sufficiency of the evidence, admission of two witnesses’ testimony (Lisa Reid and Senator Tony Avella), and wiretap issues; it found no widespread evidentiary or sufficiency defects but identified error in the jury instruction on "official act."
- The jury was instructed that "official act" could include acts customarily performed by an official and actions taken in furtherance of longer-term goals—language the Supreme Court in McDonnell deemed overbroad.
- Because the erroneous instruction, combined with trial argument emphasizing meetings as official acts, could have led the jury to convict on nonactionable conduct, the Court vacated the convictions and remanded for retrial, rejecting most other challenges but excluding Avella’s testimony on retrial as inconsistent with McDonnell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on "official act" | Instruction properly defined "official act" broadly to include acts customarily performed and steps toward longer-term goals | Instruction was overbroad under McDonnell and risked convicting on lawful constituent services | Error: instruction misstated law under McDonnell; error not harmless; convictions vacated and remanded |
| Sufficiency of evidence (quid pro quo) | Evidence (payments, no-show jobs, emails, conduct) proved quid pro quo beyond reasonable doubt | Insufficient: votes were routine/uncontroversial and not bought | Held sufficient: record supports rational juror finding quid pro quo for each scheme |
| Sufficiency of evidence (official acts) | Evidence (legislation, pushing contracts, RFPs) showed formal official acts | Defendants argued acts were mere meetings/constituent services | Held sufficient as to many acts (beyond mere meetings); AbTech evidence supported official acts if properly instructed |
| Admission of testimonial evidence (Avella; Reid) | Testimony was relevant: Reid on ethics training; Avella on what senators do | Avella’s testimony improperly equated meetings/constituent services with official acts | Reid admissible; Avella’s testimony was erroneous under McDonnell and should not be admitted on retrial |
Key Cases Cited
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (narrows "official act" to formal exercises of governmental power and warns that routine constituent services are not necessarily official acts)
- United States v. Silver, 864 F.3d 102 (2d Cir. 2017) (McDonnell error in jury charge may require vacatur when not harmless)
- United States v. Botti, 711 F.3d 299 (2d Cir. 2013) (standard for reviewing jury instructions and harmless-error test)
- United States v. Bruno, 661 F.3d 733 (2d Cir. 2011) (quid pro quo may be inferred from benefits and subsequent favorable official acts)
- United States v. Rosen, 716 F.3d 691 (2d Cir. 2013) (payments to legislators can be bribes even when acts are routine)