UNITED STATES OF AMERICA, Appellee, THE NEW YORK TIMES COMPANY, NBCUNIVERSAL MEDIA, LLC, Intervenors, v. SHELDON SILVER, Defendant-Appellant.
Docket No. 18-2380
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2018 (Argued: March 13, 2019 | Decided: January 21, 2020)
Before: WESLEY, LOHIER, and SULLIVAN, Circuit Judges.
We agree. Although Silver is incorrect in asserting that Hobbs Act extortion under color of right and honest services fraud require evidence of a meeting-of-the-minds “agreement,” he is correct that each offense demands more than a nonspecific promise to undertake official action on any future matter beneficial to
We therefore REVERSE IN PART, VACATE IN PART, AFFIRM IN PART, and REMAND for further proceedings consistent with this opinion.
Judge Lohier concurs in a separate opinion.
MEIR FEDER, (Samidh Guha, James Loonam, Conor Reardon, on the brief), Jones Day, New York, NY, for Defendant-Appellant.
DANIEL C. RICHENTHAL, Assistant United States Attorney (Damian Williams, Thomas A. McKay, Sarah K. Eddy, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.
WESLEY, Circuit Judge:
This appeal marks the second time we have been asked to review the conviction of Sheldon Silver, former Speaker of the New York State Assembly. In 2016, Silver was convicted of accepting illegal bribes, in violation of the mail and wire fraud statutes,
Silver raises two principal challenges on appeal, both concerning the district court‘s jury instructions. First, he argues that Hobbs Act extortion under color of official right and honest services fraud require evidence of an “agreement,” i.e., a meeting of the minds, between the alleged bribe payor and receiver. Second, he argues that the “as the opportunities arise” theory of bribery we recognized in United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007) does not survive McDonnell, which, he claims, requires identification of the particular act to be performed at the time the official accepts a payment or makes a promise.
We disagree with Silver‘s first theory. Extortion under color of right and honest services fraud require that the official reasonably believe, at the time the promise is made, that the payment is made in return for a commitment to perform some official action. Neither crime requires that the official and payor share a common criminal intent or purpose. We do, however, find limited merit in Silver‘s second challenge. Although neither offense requires, as he argues, advance
Because the district court‘s instructions failed to convey this limitation on the “as the opportunities arise” theory, and because this error was not harmless with respect to his conviction under three counts, we vacate Silver‘s convictions on Counts 1s, 2s, and 5s. In addition, because we conclude that the evidence as to the same three counts was insufficient as a matter of law to sustain a guilty verdict, we remand with directions for the district court to dismiss the indictment with prejudice as to them. However, because we find this error was harmless with respect to Silver‘s conviction on Counts 3s, 4s, and 6s, we affirm his conviction on those counts.
Finally, we affirm Silver‘s conviction under Count 7s for money laundering because that crime does not require the defendant to be convicted of the underlying criminal offenses, nor does it require the underlying offense to take place within the limitations period.
A. Offense Conduct1
Silver was first elected to the New York State Assembly in 1976. In 1994, he was elected Speaker of the Assembly—a position he held until his resignation in 2015.
During his tenure as Speaker, Silver worked part-time as a practicing lawyer, as permitted by New York law. See
B. Procedural History
On February 19, 2015, the Government indicted Silver on charges of honest services mail and wire fraud, Hobbs Act extortion, and money laundering. It later filed a superseding indictment charging Silver with seven counts:
- Honest Services Mail Fraud: Mesothelioma Scheme,
18 U.S.C. §§ 1341 ,1346 (Count 1s);2 - Honest Services Wire Fraud: Mesothelioma Scheme, id.
§§ 1343 ,1346 (Count 2s); - Honest Services Mail Fraud: Real Estate Scheme, id.
§§ 1341 ,1346 (Count 3s); - Honest Services Wire Fraud: Real Estate Scheme, id.
§§ 1343 ,1346 (Count 4s); - Hobbs Act Extortion: Mesothelioma Scheme, id.
§ 1951 (Count 5s); - Hobbs Act Extortion: Real Estate Scheme, id.
§ 1951 (Count 6s); - Monetary Transactions Involving Crime Proceeds, id.
§ 1957 (Count 7s).
Seven weeks later, the Supreme Court decided McDonnell, which clarified the definition of an “official act” in honest services fraud and extortion under color of right charges. 136 S. Ct. at 2371–72. Vacating the conviction of former Virginia Governor Robert McDonnell, the Court held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy‘” that involves “a formal exercise of governmental power,” is “specific and focused,” and is either “pending” or “may by law be brought” before a public official. Id.
Relying on McDonnell, Silver appealed his conviction, arguing that the decision rendered erroneous the district court‘s jury instructions defining an official act as “any action taken or to be taken under color of official authority.” Silver I, 864 F.3d at 112 (emphasis and citation omitted). We agreed and remanded for retrial because the error was not harmless. Id. at 118, 124.
The Government retried Silver in April and May of 2018. The district court instructed the jury that both honest services fraud and extortion under color of right require that Silver “understood” that, in exchange for the client referrals, he was expected to “take official action” “for the benefit of” the payor “as specific
This appeal followed.
DISCUSSION
Silver advances two principal arguments on appeal, both challenging the district court‘s jury instructions. According to Silver, (1) the court erroneously omitted from its instructions the required element of an “agreement” between Silver and the alleged bribe payors; and (2) the “as the opportunities arise” theory of bribery is no longer valid in the wake of McDonnell, which, Silver argues, requires identification of the particular act to be performed at the time the official accepts a payment or makes a promise.3 Silver also argues that the evidence is
“[W]e review a district court‘s jury charge de novo, and will vacate a conviction for an erroneous charge unless the error was harmless.” United States v. Nouri, 711 F.3d 129, 138 (2d Cir. 2013). A jury charge is erroneous if it “either fails to adequately inform the jury of the law, or misleads the jury as to a correct legal standard.” United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) (quoting United States v. Doyle, 130 F.3d 523, 535 (2d Cir. 1997)). For erroneous instructions to be harmless, it must be “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” United States v. Bah, 574 F.3d 106, 114 (2d Cir. 2009) (quoting Quattrone, 441 F.3d at 177).
I. Neither Hobbs Act Extortion Under Color of Right nor Honest Services Fraud Requires a Meeting-of-the-Minds “Agreement.”
Silver first argues that the district court erred in rejecting his request to instruct the jury that both extortion under color of right and honest services fraud require “a quid pro quo agreement between Mr. Silver and the alleged bribe payors.” J.A. 291 (emphasis added). According to Silver, both offenses require that the bribe payor and receiver share a common corrupt intent—i.e., a “meeting of the minds” as to the official acts to be procured by the payment. We disagree.
The Hobbs Act makes it a crime to “obstruct[], delay[], or affect[] commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . .”
The Supreme Court first articulated a quid pro quo requirement for extortion under color of right in McCormick v. United States, 500 U.S. 257 (1991). The Court held that extortion may occur in the special context of political contributions “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 273. The Court left open the questions of whether the offense further requires “a showing that the public official ‘induced’ the payor‘s consent by some affirmative act such as a demand or solicitation,” id. at 266 n.5, and whether “a quid pro quo requirement exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value,” id. at 274 n.10.
One year later, in Evans v. United States, 504 U.S. 255 (1992), the Supreme Court addressed both questions, concluding that extortion under color of right is the “rough equivalent
Second, the Court “modified [McCormick‘s ‘explicit promise‘] standard in non-campaign contribution cases . . . .” United States v. Garcia, 992 F.2d 409, 414 (2d Cir. 1993). Unlike in McCormick, the Evans defendant-official had never expressly promised to take official action. Evans, 504 U.S. at 257. But he had, the Court concluded, “implicit[ly] promise[d]” to do so when, after several meetings and phone calls, he accepted $8,000 from an undercover FBI agent posing as a real estate developer interested in rezoning a specific plot of land. Id. The Court treated this “implicit promise” as sufficient to prove extortion, holding that a charge that “allowed the jury to convict [the defendant] on the basis of the ‘passive
In sum, extortion under color of right requires (i) inducement, namely that “a public official has obtained a payment to which he was not entitled,” Evans, 504 U.S. at 268; and (ii) a quid pro quo, namely that the official “promise[d] . . . to perform or not to perform an official act” in return for payment, McCormick, 500 U.S. at 273, or accepted a payment “knowing that the payment was made in return for official acts,” Evans, 504 U.S. at 268.
Evans makes clear that the first element, inducement, does not require a meeting of the minds. Because “the [inducement] element is provided by the public office itself,” id. at 266, it may be proven through evidence that “the victims were motivated to make payments as a result of the defendant‘s control or influence over public officials and that the defendant was aware of this motivation,” United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000) (quoting
The second element, quid pro quo, similarly requires only that the official “assert[] that his official conduct will be controlled by the terms of the promise or undertaking.” McCormick, 500 U.S. at 273. As Evans illustrates, the official‘s actual intent is of no moment. What matters is the intent the official conveys to the payor—i.e., that he will take or refrain from taking certain official action in return for payment. Significantly, there is no requirement that the official actually intend to follow through on his commitment. What matters is that the official manifested a willingness to take payment for official action or inaction. And since the official need not follow through or even intend to follow through on his representations, it follows that there cannot logically be a requirement that the official and payor share a common purpose.
In arguing otherwise, Silver points to language in Evans explaining that the quid pro quo requirement is “satisfie[d]” where “[a] public official receives a payment in return for his agreement to perform specific official acts.” Evans, 504 U.S. at 268 (emphasis added). In doing so, he fails to acknowledge that the term “agreement” is used, in the very same opinion, interchangeably with the term “promise.” See id. at 257. Indeed, we have elsewhere done the same. See, e.g., Ganim, 510 F.3d at 141 (explaining that extortion under color of right “criminalizes . . . a quid pro quo agreement—to wit, a government official‘s receipt of a benefit in exchange for an act he has performed, or promised to perform, in the exercise of his official authority” (emphases added)). He also ignores that the Evans Court explained the quid pro quo element by reference to McCormick, which refers only to a “promise” or “undertaking.” See McCormick, 500 U.S. at 266, 273.4 Nothing Silver points to suggests that the payor and recipient must share a common purpose.
Thus, extortion under color of right does not require a meeting-of-the-minds agreement. We accordingly find no error in the jury instructions at issue here. They adequately explained that the Government was required to prove that “the extorted party was motivated, at least in part, by the expectation that as a result of the payment, Mr. Silver would exercise official influence or decision-making for the benefit of the extorted party,” that Silver was “aware of th[is] motivation,” and that Silver “knowingly and intentionally sought or received property . . . in exchange for the promise or performance of official action.” Special App. 32–33.
Silver makes the same “agreement” argument with respect to the district court‘s instructions on honest services fraud. He further argues that this error was compounded by an instruction that, unlike in extortion under color of right, the payor‘s intent is irrelevant to proving honest services fraud. We again find no error in the instructions in this regard.
The mail and wire fraud statutes criminalize use of their respective communication channels for the purpose of executing a “scheme or artifice to defraud.”
It remains an open question whether vagueness concerns further require that honest services fraud be defined, in all cases, by reference to one of the various federal bribery statutes. See Silver I, 864 F.3d at 116 n.67; cf. Skilling, 561 U.S. at 412 (explaining that there is “no significant risk that the honest-services statute . . . will be stretched out of shape” because it “draws content . . . from federal statutes proscribing—and defining—similar crimes” (citing
In United States v. Rybicki, we held that the mens rea required for honest services fraud is proof that the defendant “inten[ded] to deprive another of the intangible right of honest services.” 354 F.3d 124, 145 (2d Cir. 2003) (en banc) (citation omitted). Where, as here, the prosecution relies on a bribery theory, the
Neither Rybicki‘s specific intent element nor Ganim‘s quid pro quo element supports Silver‘s argument that there must be a meeting of the minds between the payor and the official as to the corrupt purpose of the payments. Rybicki is concerned only with the defendant‘s state of mind—whether she purposefully sought to breach her duties of honesty and loyalty. For the same reasons discussed in the context of extortion, “knowledge” and “promise” imply a unilateral awareness of, or commitment to do or not do, something; neither demands a meeting of the minds. Finally, although “understanding” could be interpreted as requiring a collusive agreement, such a reading is incompatible with the synonymous use of “promise” in Ganim. See, e.g., Ganim, 510 F.3d at 144–45.
Silver is therefore incorrect in arguing that honest services fraud requires evidence of a meeting of the minds. We accordingly find no error in the jury instructions he challenges. They adequately conveyed that,
Special App. 30 (emphasis added). If anything, the district court raised the Government’s burden to Silver’s benefit by requiring that Silver “inten[ded] to be influenced.” Id. As both McDonnell and Myers make clear, it is the official’s conveyed intent—not her actual intent—that is determinative in an honest services fraud conviction. To the extent Silver argues that it was error to instruct that the payor’s intent is irrelevant, he mistakenly attempts to import an element of extortion into honest services fraud. It was extortion’s unique inducement element—not its quid pro quo element—that required evidence as to the payor’s purpose. See Evans, 504 U.S. at 266. As Myers makes clear, honest services fraud is concerned only with the official’s subjective belief as to the payor’s purpose.
II. The “As The Opportunities Arise” Theory Remains Valid Post‐McDonnell, but the Instructions Erroneously Failed to Convey Its Requirements.
Silver’s second challenge is to the district court’s instruction that an official may be found guilty of extortion under color of right and honest services fraud so long as he promised “to take official action in exchange for . . . payments as the
A. Bribery Does Not Require Identification of the Particular Act to Be Performed.
To begin, Silver is incorrect in asserting that bribery requires a promise to perform a particular official act. McDonnell explained that both extortion under color of right and honest services fraud require that an official promise to “make a decision or take an action on a ‘question, matter, cause, suit, proceeding or controversy.’” 136 S. Ct. at 2371 (internal quotation marks omitted). Neither offense, however, requires that the official “specify the means that he will use to perform his end of the bargain.” Id. (emphasis added); see also Ganim, 510 F.3d at
B. McDonnell Requires that the Official Understand the Particular Question or Matter to Be Influenced at the Time of the Promise.
Even though the particular act of influence need not be identified at the time of the official’s promise, the particular question or matter to be influenced must be. The “as the opportunities arise” theory of bribery, which we approved in Ganim, requires a promise to “exercise particular kinds of influence . . . as specific opportunities ar[i]se.” 510 F.3d at 144 (emphasis added) (citation omitted). Although Ganim rejected the proposition “that a specific act [must] be identified and directly linked to a benefit at the time the benefit is received,” id. at 145, McDonnell clarifies that, to be convicted of bribery under the “as the opportunities arise” theory, the public official must, at minimum, promise to influence a
1. The “As The Opportunities Arise” Theory of Bribery
In Ganim we reviewed the extortion under color of right and honest services fraud convictions of former Bridgeport, Connecticut mayor Joseph Ganim. Several companies and individuals had paid bribes to Ganim’s aides in exchange for Ganim undertaking official acts on pending issues. The aides then provided Ganim with money and other benefits over a period of four years. Because many of the bribery schemes overlapped, and because Ganim received the payments from his aides rather than directly from the bribe payors, the individual benefits that Ganim received were not always tied directly to a specific official act. This lack of linkage, Ganim argued, defeated the Government’s case.
Such a link is “not needed in the extortion or bribery contexts,” we explained, because “it is the requirement of an intent to perform an act in exchange for a benefit—i.e., the quid pro quo agreement [or promise]—that distinguishes those crimes from both legal and illegal gratuities.” Ganim, 510 F.3d at 146–47. In other words, bribery’s quid pro quo requirement serves the same function as does the nexus requirement for illegal gratuities: avoiding the “peculiar result[]” that, without requiring a quid pro quo, federal law might unconstitutionally criminalize
2. McDonnell v. United States
In McDonnell, the Supreme Court reviewed a challenge to jury instructions on extortion under color of right and honest services fraud. At issue was “whether arranging a meeting, contacting another official, or hosting an event—without more—can be a[n official act].” Id. at 2368. Like the parties here—but unlike in Ganim, 510 F.3d at 142 n.4—the parties in McDonnell agreed to define “official act” by reference to the federal bribery statute,
The Supreme Court, citing concerns that the “standardless sweep” of this definition could “subject [public officials] to prosecution, without fair notice, for the most prosaic interactions,” found these instructions to be inadequate. Id. at 2373 (citation omitted). It explained that, in order to “avoid[] this ‘vagueness shoal,’” id. (quoting Skilling, 561 U.S. at 368), a narrower definition of “official act” was necessary.
First, the Court observed that a “‘cause,’ ‘suit,’ ‘proceeding,’ [or] ‘controversy’ . . . connote[s] a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” Id. at 2368, 2374 (quoting
Contrary to the Government’s assertions, the Court’s vacatur of McDonnell’s conviction was not limited to concerns that the jury may have believed a meeting, on its own, qualifies as a “decision or action.” Id. at 2375. The Court was also concerned that the jury may have convicted the defendant “without finding that he agreed [(or promised)] to make a decision or take an action on a properly defined ‘question, matter, cause, suit, proceeding or controversy.’” Id. at 2375 (emphasis added). In fact, the Court discussed specific examples of both properly—and improperly—defined “focused and concrete . . . formal exercise[s] of governmental power.” Id. at 2370. The examples were limited to “questions or matters” because, as here, there was no allegation that McDonnell promised to influence a “cause, suit, proceeding or controversy”—like “a lawsuit, hearing, or administrative determination.” See id. at 2368–70.
The Court agreed with the Fourth Circuit that the following questions or matters were sufficiently “focused and concrete”:
Two observations drawn from McDonnell’s language inform our analysis. First, McDonnell re‐emphasizes that the relevant point in time in a quid pro quo bribery scheme is the moment at which the public official accepts the payment. See id. at 2374; see also Evans, 504 U.S. at 268 (“[T]he offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts . . . .”). The question that arises here, however, is: what must the official promise at the time the bribery offense is committed?
That leads to our second observation. McDonnell suggests that, at the time the bribe is made, the promised official act must relate to a “properly defined” “question, matter, cause, suit, proceeding or controversy.” See McDonnell, 136 S. Ct. at 2374. This follows from the fact that there are two requirements for an official act: “First, the Government must identify a ‘question, matter, cause, suit, proceeding or controversy,’” and “[s]econd, the Government must prove that the public official made a decision or took an action ‘on’ that question, matter, cause, suit, proceeding, or controversy, or agreed to do so.” Id. at 2368 (emphasis added). Thus, for an official to promise to perform an official act—and thereby engage in
This point is illustrated in the context of this case by considering the following example: An official accepts a bribe, stating to the payor that she will “take official acts as the opportunities arise.” In other words, the official has promised to take—as the opportunities arise—“any decision or action on any question, matter, cause, suit, proceeding or controversy [that] may at any time be pending,”
McDonnell thus stands for the proposition that bribery requires that an official accept a payment, knowing that he is expected to use his office to influence a “focused,” “concrete,” and “specific” question or matter that “may be
This observation does not signal a change in the law. Nor do we suspect it will affect the prosecution of bribery in most cases because neither the facts of McDonnell, nor the Court’s opinion, suggest that either the payor or the official must precisely define the relevant matter or question upon which the official is
Otherwise, we risk “subject[ing] [public officials] to prosecution, without fair notice, for the most prosaic interactions.” McDonnell, 136 S. Ct. at 2373. Indeed, without a requirement that an official must promise to influence a particular question or matter, any official who accepts a thing of value and then later acts to the benefit of the donor, in any manner, could be vulnerable to criminal prosecution. See Bruno, 661 F.3d at 744 (explaining that a jury may “infer guilt from evidence of benefits received and subsequent favorable treatment” (quoting United States v. Friedman, 854 F.2d 535, 554 (2d Cir. 1988))); see also McDonnell, 136 S. Ct. at 2372 (“Officials might wonder whether they could respond to even the
C. The Jury Instructions in Context
Having determined that the “as the opportunities arise” theory of bribery survives McDonnell, but that the quid pro quo requirement demands more than a mere promise to perform some or any official action to “benefit the payor,” we turn to the jury instructions provided in this case.
The district court provided the following instruction to the jury on honest services fraud:
The government must prove that a bribe was sought or received by Mr. Silver, directly or indirectly, in exchange for the promise or performance of official action. The government does not have to prove that there was an . . . agreement . . . that any particular action would be taken in exchange for the bribe. . . .
[It does have to] prove that Mr. Silver . . . understood that, as a result of the bribe, he was expected to exercise official influence or take official action for the benefit of the payor and, at the time the bribe was accepted, intended to do so as specific opportunities arose. . . .
An “official act” or “official action” is a decision or action on a specific matter that may be pending or may by law be brought before a public official. . . . The decision or action must be made on a question or matter that involves a formal exercise of governmental power. That means that the question or matter must be specific, focused, and concrete—for example, the kind of thing that could be put on an agenda and then checked off as complete. It must be something that may by law be brought before a public official, or may at some time be pending before a public official.
Special App. 30–31 (emphases added). The court instructed the jury on extortion under color of right as follows:
To satisfy [the quid pro quo] element, the government must prove . . . that Mr. Silver obtained property to which he was not entitled by his public office, knowing that it was given in return for official acts as the opportunity arose . . . . If you find that Mr. Silver understood that the property at issue was given solely to cultivate goodwill or to nurture a relationship with the person or entity who gave the property and not as an exchange for any official action, then this element has not been proven . . . . On the other hand, if you find that Mr. Silver accepted the property intending, at least in part, to take official action in exchange for those payments as the opportunity arose, then [the quid quo pro] element has been satisfied.
The instructions required that, at the time Silver entered into the quid pro quo, he believed that the payor expected him to exchange payment for “official action [to] the benefit of the payor . . . as specific opportunities arose,” id. at 30, or “official acts as the opportunity arose,” id. at 33. Although the district court further instructed the jury that it must find that Silver “made [a decision] on a question or matter that . . . [was] specific, focused, and concrete,” id. at 31 (emphasis added), it did not require that the specific matter—e.g., the receipt of grant funding (Mesothelioma Scheme) or extending specific tax programs (Real Estate Scheme)—be identified, or even understood by Silver, at the time he accepted the bribe.
Analyzing the district court’s instructions in the context of the Real Estate and Mesothelioma Schemes demonstrates both that Silver overreads McDonnell and that the Government relies on an open‐ended interpretation of Ganim. In our view, the district court’s instructions were erroneous. They only required the jury to find that Silver understood, at the time that he accepted any quid, that he was expected to exercise official influence or take official action for the benefit of the payor. As we explain below, an illegal quid pro quo under the “as the opportunities
1. Mesothelioma Scheme (Counts 1s, 2s, and 5s)
The Government argues that Silver took “at least five official actions” in connection with the Mesothelioma Scheme, which allegedly involved the exchange of client referrals for acts benefitting a Manhattan physician, Dr. Robert Taub. Special App. 44. The acts included securing two grants to fund Taub’s research; directing funding to a nonprofit for which Taub’s wife served as a board member; securing an Assembly resolution honoring Taub; and offering to secure permits needed for a charity race in Silver’s Lower Manhattan Assembly district.12
a. Background
In the fall of 2002, while he was Speaker of the Assembly, Silver became “of counsel” to the law firm Weitz & Luxenberg (“W&L”), which maintained an active personal injury practice. Lawsuits for mesothelioma, a rare form of cancer caused
Taub, an acquaintance of Silver, worked as a physician and researcher at Columbia‐Presbyterian Hospital where he specialized in mesothelioma. In the fall of 2003, Taub met Silver at an event and “specifically” asked him to encourage W&L to donate money to mesothelioma research. J.A. 445. Silver declined.
However, “[a] few days” later, a mutual friend—Daniel Chill—relayed to Taub that “Shelly [Silver] want[ed] cases.” Id. at 446. Taub then began referring patients to Silver for legal representation. As Taub put it, he understood that “if [he] referred patients to [W&L] . . ., [Silver] would be incentivized to be an advocate for mesothelioma research and to help mesothelioma patients.” Id. at 489.
Within “seven or eight months” of when Taub began sending referrals, Silver—again through Chill—directed Taub to write Silver a letter seeking state funding for his mesothelioma research. Id. at 447. Chill assisted Taub in drafting the letter, which requested $250,000. In March 2005, Silver received from W&L his first check for fees from Taub’s referrals, totaling more than $175,000.
Taub continued to refer patients to W&L after he received the first grant. In October 2006, Taub sent Silver a letter requesting a second $250,000 HCRA grant. He received that funding in November 2006.
In 2007, state law changed to require public disclosure of future HCRA grants, as well as disclosure to the State Attorney General of any potential conflicts of interest between legislators and recipients of legislative grants. That same year, Silver informed Taub in person that he could not fund his third HCRA grant request.
Taub nevertheless continued sending mesothelioma client leads to W&L until 2010, at which time he began sending fewer leads to W&L because he had started sending leads to another law firm. In response, on May 25, 2010, Silver
Silver did, in fact, continue to help Taub in other ways. First, in 2008 he directed a $25,000 state grant to the Shalom Task Force, a domestic violence non-profit for which Taub’s wife served as a board member. Second, in May 2011, Silver sponsored an Assembly resolution commending Taub. He presented the resolution to Taub at a public event. And, third, in the fall of 2011, Silver promised Taub that his office could help “navigate” the process of securing permits needed to organize a proposed “Miles for Meso” charity race in Silver’s Assembly district. Id. at 1774. The promise never came to fruition, as the event was abandoned shortly thereafter.
b. HCRA Grants
The HCRA grants are the most clearly-defined aspect of the Mesothelioma Scheme. As detailed above, the facts adduced at trial provide overwhelming evidence that Silver knowingly accepted referrals in exchange for action on a “focused and concrete” question or matter: whether the Assembly would allocate grant money to Taub for the study of mesothelioma. From the moment Taub approached Silver about research funding, Silver knew that he had power over something of great value to Taub. He then chose to abuse that power for personal gain. The HCRA component of the Mesothelioma Scheme is thus a quintessential example of a public official extorting a constituent under color of right and committing honest services fraud, and the district court’s charge adequately informed the jury of this aspect of the scheme. While not naming the specific matter in the charge, there could be but one conclusion: that the focus of the promise was on the particular subject matter of state funding for mesothelioma research.
c. Non-Profit Funding, Charity Race Permits, and the Assembly Resolution
The Government argues that, even without the HCRA grants, it presented evidence beyond a reasonable doubt that Silver knowingly exchanged referrals for influence on a particular question or matter. Silver’s corrupt promise, in the Government’s view, is particularized by any official act that benefitted Taub. The Government points to the hodgepodge of other allegedly official acts Silver undertook, including securing funding for Taub’s wife’s charity, formally recognizing Taub in an Assembly resolution, and offering to assist in securing permits for Taub’s charity race. The district court’s charge is in accord with that view. However, as we explain below, like the HCRA grants, Silver’s securing of funding for Taub’s wife’s charity is also outside of the limitations period. Thus, Silver’s conviction rests upon whether Ganim, as modified by McDonnell, requires only that the official understood he was expected to take official action “for the benefit of the payor,” as the opportunities arose.
The Real Estate Scheme presents a significantly different factual scenario that more closely resembles classic bribery-based crimes. The Government argues that Silver committed at least two official acts in connection with the Real Estate Scheme, which involved two major New York real estate developers: Glenwood Management and the Witkoff Group (collectively, the “Developers”). First, the Government argues that Silver helped pass legislation beneficial to the Developers, specifically provisions of the Rent Act of 2011 concerning certain tax abatement and rent stabilization programs. Second, the Government asserts that Silver helped Glenwood secure certain tax-exempt financing from the Public Authority Control Board (“PACB”), of which he was a voting member.14
The Glenwood referrals began in 2002, when Goldberg asked a Glenwood lobbyist to send him some of Glenwood’s tax certiorari work. Although the lobbyist testified that both he and the leadership of Glenwood were unaware until December 2011 that Silver received referral fees from G&I, he also testified that he “thought [the fact that Silver and Goldberg were friends] would be important to [Glenwood] to know” when considering whether to retain G&I. J.A. 728.
The Witkoff referrals began in 2004 when Silver “told [Witkoff] that he had a friend whose name was Jay Goldberg who was in the tax certiorari legal business. He was struggling and was wondering if [Witkoff] might consider giving some of
Silver’s first alleged quid pro quo with the Developers involved an exchange of referrals from Glenwood for influence on provisions of the Rent Act of 2011. As Speaker, Silver had substantial control over which legislation went to the Assembly floor for a vote. Glenwood’s lobbyist testified that provisions of the Rent Act of 2011 related to tax abatement and rent stabilization were “[v]ery” important to Glenwood, and that “without continuation of [the tax abatement program, Glenwood] couldn’t build any more buildings.” Id. at 725; see also id. at 796 (Witkoff testifying that “[i]f [Witkoff] didn’t have [the tax abatement], it would have been a tougher exercise to finance [certain prior] project[s]”). Glenwood’s lobbyist also testified that passage of both provisions was “[e]xtremely”
In June 2011, Silver met with Glenwood’s lobbyists in his Assembly office. The lobbyists proposed that certain rent stabilization provisions in the Rent Act of 2011 be made more tenant-friendly to ensure passage of the larger “full bill” that included renewal of the specific tax abatement program important to Glenwood. See id. at 726–27. Several weeks later, the bill passed to the “satisf[action]” of Glenwood. Id. at 727.
The second alleged quid pro quo involved an exchange of referrals from Glenwood for Silver’s influence as a voting member of the PACB. Because PACB financing applications require unanimous approval, Silver had the power to unilaterally deny them. Silver voted in favor of all eight of the Glenwood PACB requests received between 2000 and 2012. Four of these approvals—November 2010, October 2011, October 2012, and August 2014—occurred within the limitations period.
In proving the Real Estate Scheme, the Government highlighted a “side letter” retainer agreement signed by Goldberg, Glenwood, and Silver in December 2011. See id. at 898. In late 2011, G&I prepared new retainer agreements “notifying
Days after Silver and Glenwood inked the side letter, Glenwood sent six new buildings to Goldberg for tax certiorari representation—benefitting Silver. Silver also voted to approve hundreds of millions of dollars in PACB financing benefitting Glenwood two months before and ten months after signing the letter. Additionally, had Silver still been in the Assembly in 2015, he would have again had the opportunity to vote on the same valuable tax abatement and rent stabilization programs, which must be renewed every four years. Although Silver
In total, over a period of about 18 years, Silver received approximately $835,000 in fees from G&I for referring the Developers’ tax certiorari work to the firm.
3. Silver’s Conviction Depends on the Proper Understanding of Ganim’s Requirement that the Official Agree to Exercise “Particular Kinds of Influence.”
As discussed, the Mesothelioma Scheme changed after 2007. After Taub stopped directing referrals to W&L through Silver, and after Silver visited Taub’s office seeking additional referrals, the Government argued that the character of the quid pro quo changed. The jury instructions as written encompass what the Government believed the character of the quid pro quo had become—that after Silver sought additional referrals, he promised to, or understood that he was expected to, perform official acts, for Taub’s benefit, as the opportunities to do so arose.
In contrast, the quid pro quo that allegedly forms the basis of the Real Estate Scheme is more focused. The Government presented evidence tracking Silver’s signing of the “side letter” retainer agreement with PACB approvals, and Glenwood and Witkoff’s retention of G&I with Silver’s actions related to the Rent Act of 2011. The Government also presented evidence suggesting the relationship between Silver and the Developers continued due to the Developers’ fear that Silver would act adversely to their interests. Furthermore, there is evidence suggesting that Silver’s relationship with Glenwood and its lobbyists centered around Silver’s approval of specific favorable provisions contained in real estate legislation. And circumstantial evidence of the timing of (in particular)
While the Government presented no evidence that Taub sought, or Silver promised to provide, the Assembly resolution as part of the Mesothelioma Scheme, with respect to the Real Estate Scheme, the Government presented evidence that links Silver’s official actions with business provided by the Developers to G&I. The Government’s “for the benefit of” theory occasioned by the factual differences in the two schemes compels us to confront what is required under Ganim, in light of McDonnell, when an official promises to exercise “particular kinds of influence” “as the opportunities arise.” See Ganim, 510 F.3d at 145.
D. The “As the Opportunities Arise” Theory of Bribery Requires More Than a Promise to Perform Any Official Act for the Benefit of the Payor.
As discussed above, the jury instructions only required the jury to determine whether Mr. Silver promised to, or understood that he was expected to, perform official acts “for the benefit of the payor” as the opportunities to do so arose. Special App. 30–31. The instruction on extortion under color of right was even less definite, asking the jury to determine only whether Silver “accepted the
Under the instructions provided by the district court, and according to the Government’s argument, it is enough that the official promised to perform some or any official acts, for the benefit of the payor, as the opportunities arose. See, e.g., Appellee Br. at 39, 41–42. However, the facts of Ganim demonstrate that the “as the opportunities arise” theory has always required more than a mere promise to perform official acts “for the benefit of the payor.”
Specifically, Ganim used two aides, both of whom held side jobs as consultants, to facilitate various bribery schemes. In each instance, Ganim knew that the bribe payor sought to influence an identified issue pending before the City—including specific wastewater treatment contracts, an open municipal pension brokerage position, condemnation of a specific property, and two identified property development contracts—by paying consulting fees to the aides. Ganim, 510 F.3d at 137–40. The aides kept Ganim’s fee shares “to avoid
Thus, it was clear from the beginning what “particular kinds of influence” Ganim was expected to exercise, namely official action affecting each of these identified areas.15 Id. at 149. This exchange of payments “for a specific exercise of [Ganim’s] official powers” was enough to sustain Ganim’s conviction, even though the separate questions of how Ganim would influence those issues (which
In Ganim, the fact that a specific official act did not need to be linked to a gratuity (this for that) did not eliminate the necessity of some degree of specificity to the public official’s promise. The “opportunities” had definition—they were not open-ended and subject to whatever the public official thought might please (or benefit) the bribe payor.
To the extent our sister circuits have used language suggesting the open-ended liability advanced by the Government, a close review of the facts in each case makes clear that they, like Ganim, do not support such a sweeping view of bribery. For example, in United States v. Kincaid-Chauncey, the Ninth Circuit upheld instructions regarding extortion and honest services fraud similar to those in Ganim—that the public official must have “underst[ood] that he or she [was] expected as a result of the payment to exercise particular kinds of influence as specific opportunities ar[o]se.” 556 F.3d at 945. There, the Government’s evidence
The Ninth Circuit’s observation that “[i]t is sufficient . . . if the evidence establishes that the government official . . . has received payments or other items of value with the understanding that when the payor comes calling, the government official will do whatever is asked” was set in the context of identified concerns followed by official acts. Id. at 927–28, 943 n.15. As in Ganim, the commissioner knew she was expected to assist in securing various government approvals for the owner’s business in exchange for the payments. What she, like Ganim, did not know was what form that assistance would ultimately take. The phrase “when the payor comes calling” was thus another way of conveying that the specific act need not be identified at the time of payment, but may instead be
But contrary to the Government’s assertions, Ganim neither held, nor do its facts suggest, that a bribery scheme involving payments made in return for a promise to “take [some or any] official action” beneficial in any way to the payor
In short, “[s]erving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator.” McCormick, 500 U.S. at 272. The federal criminal statutes cannot be read in a manner that “reaches any effort to buy favor or generalized goodwill from an official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorably to the giver’s interests,” Sun–Diamond, 526 U.S. at 405, or that “’involves the Federal Government in setting standards’ of
For the foregoing reasons, Ganim’s rule that the jury “need not find that the specific act to be performed was identified at the time of the promise, nor need it link each specific benefit to a single official act,” 510 F.3d at 147, remains good law. Furthermore, McDonnell makes clear that the official need not communicate that he will, or otherwise believe that he is expected to, affect the relevant “question, matter, cause, suit, proceeding or controversy” by any particular “means.” McDonnell, 136 S. Ct. at 2371 (emphasis added). That is, the official need not promise to perform any precise act upon the relevant question or matter. But to the extent that the Government reads McDonnell to allow an open-ended promise limited only by those acts that benefit the payor and not to require that a particular question or matter be identified at the time the official enters into a quid pro quo arrangement, we disagree.
With respect to honest services fraud, the jury was instructed that it needed only to find that Silver was “expected to exercise official influence or take official action for the benefit of the payor.” Special App. 30–31 (emphasis added). Instead, the jury should have been instructed that, to convict on honest services fraud, the
As to Hobbs Act extortion, the jury was instructed that they could find Silver guilty if they found that he “obtained property to which he was not entitled by his public office, knowing that it was given in return for official acts as the opportunity arose,” “that the extorted party was motivated, at least in part, by the expectation that as a result of the payment, Mr. Silver would exercise official influence or decision-making for the benefit of the extorted party, . . . that Mr. Silver was aware of that motivation,” and that the property was given “as an exchange for any official action.” Id. at 32–33 (emphases added). Instead, the jury should have been told that the quid pro quo element was satisfied if, at the time Silver accepted the extorted property, he understood that he was expected, in exchange for those payments, to take official action on a specific and focused question or matter as the opportunity to do so arose.19 See, e.g., Ganim, 510 F.3d at 144–45 (finding no error
Instructing a jury that an official need only understand her official action to benefit the payor creates a situation where an official could accept a payment—lawful or otherwise—and later incur criminal liability by voting on any legislation or performing any official act on any topic that benefits the payor. While some may find political contributions a corrupting influence in American politics, those moral judgments do not define criminal liability.
In summary, the jury instructions were erroneous because the required quid pro quo contained therein was too open-ended. The instructions failed to convey that Silver could not be convicted of honest services fraud unless the Government proved that, at the time the bribe was accepted, Silver promised to take official action on a specific and focused question or matter as the opportunities to take such action arose. And, with respect to Hobbs Act Extortion, the instructions erroneously failed to convey that the Government was required to prove that, at
III. Harmlessness
Because the instructions are burdened with this error, we must determine whether the error was harmless as to Silver‘s convictions. For the erroneous instructions to have been harmless, it must be “clear beyond a reasonable doubt that a rational jury would have found [Silver] guilty absent the error.” Bah, 574 F.3d at 114 (quoting Quattrone, 441 F.3d at 177). That is to say, we must be convinced that a rational jury would have found that Silver entered into the alleged quid pro quos understanding that he was expected to influence “specific,” “focused, and concrete” questions or matters.20 The Government bears the burden of establishing that any error is harmless. See Quattrone, 441 F.3d at 181.
As we noted in our earlier discussion, Silver‘s convictions under Counts 1s, 2s, and 5s are dependent upon whether liability could attach to a promise to perform official acts “for the benefit of the payor.” In light of our analysis of McDonnell and Ganim, we cannot conclude, beyond a reasonable doubt, that a rational jury would have found Silver guilty of counts related to the Mesothelioma Scheme had it been properly instructed on the requirements of a quid pro quo under an “as the opportunities arise” theory of bribery.
Because, as we discuss in more detail below, the statute of limitations precludes consideration of the HCRA grants and the procurement of funding for Taub‘s wife‘s charity, we limit our review to the other evidence remaining in the record. This review reveals that the Government presented no evidence that Silver made any promises to Taub, after 2007, regarding any action on any identified, or even identifiable, question or matter—much less a focused or concrete question or matter involving the exercise of governmental power. While the Government argues that the character of Silver and Taub‘s quid pro quo merely changed after 2007, we find no evidence in the record from which a rational jury could conclude
The last remaining argument that any error was harmless, then, is that a rational jury would have found that Silver promised to honor Taub through an Assembly resolution in exchange for referrals. While the Assembly resolution is indisputably an official act, we find no evidence on the record from which a jury could conclude Silver ever promised to pass the resolution or understood Taub‘s referrals were in exchange for his doing so. Instead, the evidence demonstrates that the assembly resolution was “last minute,” and “rush[ed].” See Special App. 49. A rational jury could only have found that Silver engaged in a corrupt quid pro quo exchanging referrals for the Assembly resolution by relying upon the very
With respect to Counts 1s, 2s, and 5s, the error is not harmless.
B. It is Clear Beyond a Reasonable Doubt that a Rational Jury Would Have Found that the Real Estate Scheme Concerned Sufficiently “Focused and Concrete” “Questions or Matters” “Involving a Formal Exercise of Governmental Power.”
With respect to the Real Estate Scheme, the question is whether it is clear beyond a reasonable doubt that a rational jury would have found that Silver
Neither party argues, nor does the record reflect, that Silver and the Developers themselves focused on a particular question or matter forming the subject of the quid pro quo in advance. However, the “side letter” provides strong evidence of a quid pro quo between Silver and the Developers on a focused and concrete question or matter. Not only does it reasonably constitute “behavior indicating consciousness of guilt,” Bruno, 661 F.3d at 744 (quoting Friedman, 854 F.2d at 554), it
Based on the fact that the Developers knew (i) Silver‘s vote alone could prevent them from obtaining PACB funding, and (ii) that Silver had an extraordinary amount of power to influence the Rent Act (which required regular renewal), it is clear beyond a reasonable doubt that a rational, properly instructed jury would conclude that the Developers signed the “side letter” and thus provided business to G&I in exchange for official actions related to those two questions or matters. This is especially true in light of the circumstantial evidence presented by the Government, which demonstrated a pattern between Silver‘s PACB approvals, actions with respect to the Rent Act of 2011, and the Developers’ provision of business to G&I. We believe it is clear beyond a reasonable doubt that a rational jury would have concluded, absent the error, that Silver understood he
Furthermore, we find that the circumstantial timing of Silver‘s PACB funding approvals and Glenwood‘s signing of the “side letter” demonstrate that one of the identified, focused, and concrete matters at the heart of Silver‘s quid pro quo with the Developers was whether the State would finance the Developers’ projects through PACB funding in exchange for the Developers’ provision of business to G&I.
On this evidence, we find that the district court‘s failure to instruct the jury that Silver must have believed the Developers sought his influence on “focused and concrete” matters was harmless. That is, we are convinced, beyond a reasonable doubt, that a rational, properly instructed jury would have found Silver possessed the required mens rea at the time he accepted the payment. This is especially true because the district court instructed the jury that, should they find “Mr. Silver understood that the benefits were provided solely to cultivate goodwill or to nurture a relationship with the person or entity who provided the benefit,” then no quid pro quo was proven. Special App. 30.
IV. Because There is Insufficient Evidence to Prove the Mesothelioma Scheme Beyond a Reasonable Doubt, We Remand with Instructions to Vacate Those Counts.
Having determined that the erroneous jury instructions were not harmless with respect to the Mesothelioma Scheme, we must assess whether those counts should be remanded for a retrial or dismissed outright. Ordinarily, “[a]n erroneous jury instruction mandates a new trial unless the error is harmless.” Cobb v. Pozzi, 363 F.3d 89, 112 (2d Cir. 2004). However, on rare occasions, we have remanded with instructions to dismiss charges without a trial where it is undisputed that the evidence would be insufficient to prove the elements of the charges beyond a reasonable doubt to a properly instructed jury. See, e.g., United States v. Newman, 773 F.3d 438, 451, 455 (2d Cir. 2014), abrogated on other grounds by Salman v. United States, 137 S. Ct. 420 (2016).
Here, we must consider whether the jury could have found the relevant elements of each of the Mesothelioma Scheme counts beyond a reasonable doubt. As noted earlier, for Hobbs Act extortion, the Government needed to prove that Silver “obtain[ed] . . . property from another, with his consent, induced . . . under
Similarly, with respect to honest services wire and mail fraud, the Government needed to prove that Silver used the mails and interstate wire communications to participate in a “scheme or artifice” to “deprive another of the intangible right of honest services.” See
Here, Silver was not indicted until February 2015. The five-year statute of limitations thus excludes conduct that occurred before February 2010. See
Although Taub‘s referrals continued into the limitations period, until at least 2013, the Government does not contend that those referrals constituted “back pay” for the 2005, 2006, or 2007 grants.23 Indeed, by 2007 Silver had told Taub that the HCRA grants would cease, and Taub himself testified that the post-2010 referrals were, instead, intended to curry generalized goodwill. See, e.g., J.A. 500 (Taub testifying that he continued sending cases to Silver because he “was a very powerful man and there were other ways in which he could assist in helping mesothelioma patients” (emphasis added)); id. at 1775 (2010 email from Taub stating that he would “keep giving cases to [Silver] because [Taub] may need him in the future—he is the most powerful man in New York State” (emphasis added));
Moreover, the fact that W&L continued to pay Silver after 2010 for legal fees generated on the pre-2007 referrals does not automatically extend the scheme for statute of limitations purposes. Rather, those payments must be made “in furtherance of” an ongoing scheme, not merely as “the result of a completed” one. See United States v. Grimm, 738 F.3d 498, 503 (2d Cir. 2013).24
The five-year statute of limitations under
Based on this reasoning, we disagree with the Government that the post-2010 payments provide evidence of an ongoing scheme. There is no evidence of any “corrupt intervention” here—and certainly nothing like the conduct in Rutigliano, where the defendants, within the limitations period, mailed false disability recertification forms to secure continued payments. See 790 F.3d at 400–01. Instead, the compensation that Silver received after 2010 for referrals Taub
The thing of value (or the quid) that Silver received from Taub in exchange for his promise to deliver the HCRA grants was the referrals themselves—not the subsequent payouts from W&L on the referrals that generated fees for the firm. If Silver had been paid in oil leases or diamonds or savings bonds, the result would be the same, regardless of when those properties were subsequently monetized. Here, Taub paid his bribe in referrals made between 2005 and 2007—well before the February 2010 limitations cut off. The fact that W&L later earned fees and cut checks to Silver does not alter the fact that the HCRA scheme was completed by 2007. Thus, because the within-limitations payments to Silver from W&L were “the result of a completed [scheme], and . . . not in furtherance of one that [was] ongoing,” the HCRA scheme was not renewed with each payment. See Grimm, 738 F.3d at 503 (second emphasis added).
To begin, Silver allocated state funding for Taub‘s wife‘s charity in 2008, prior to the limitations period. As with the HCRA grants, there is no evidence that post-2010 referrals—i.e., referrals within the relevant limitations period—were made in return for this prior grant. The charity grant is likewise time-barred and cannot sustain Silver‘s conviction.
As to the charity race, McDonnell makes clear that Silver‘s offer to assist in securing permits for Taub‘s planned “Miles for Meso” event did not constitute an official act. At trial, the Government showed that Silver met with Taub in 2011 to discuss a charity run in Lower Manhattan, which had a moratorium on such events. Silver subsequently sent a letter to Taub, on official letterhead, explaining the permit procedure and promising to “help . . . navigate th[e] process if needed.” J.A. 1774. Because “using government letterhead is not, by itself, a formal exercise of government power on a matter similar to a hearing or lawsuit,” Silver I, 864 F.3d at 120, no reasonable jury could find that Silver‘s promise to “help . . . navigate th[e] process,” J.A. 1774, constituted a promise to use his office to Taub‘s benefit.
Thus, Silver‘s conviction on the Mesothelioma Scheme turns on whether a rational jury could find that Silver either promised or understood he was expected to exchange the Assembly resolution for referrals.
Without the HCRA grants, we are compelled to conclude that “no rational trier of fact could have found [Silver] guilty beyond a reasonable doubt” with respect to Counts 1s, 2s, and 5s. See United States v. Cassese, 428 F.3d 92, 98 (2d Cir. 2005) (quoting United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)); see also Newman, 773 F.3d at 455 (identifying instructional error and ordering dismissal of the indictment under Rule 29 because even a properly instructed jury would not have had sufficient evidence to convict).27
For the same reasons that we found the erroneous jury instructions were not harmless with respect to Counts 1s, 2s, and 5s, we find that there is no evidence that Silver engaged in a quid pro quo within the limitations period, much less understood he was expected to influence a “focused and concrete” question or matter in exchange for mesothelioma client referrals.
At best, the Government‘s evidence suggests Silver understood he was expected to influence some or any matter beneficial to Taub, should an opportunity to do so arise. In essence, the Government argues that after the HCRA scheme ended, without even a “wink[]” or a “nod[]” from Taub indicating what he wanted in exchange for future referrals, see Evans, 504 U.S. at 274 (Kennedy, J., concurring in part and concurring in the judgment), Silver was found criminally liable for engaging in outside work (an otherwise lawful endeavor) and then
Accordingly, we reverse the judgment of the district court on Counts 1s, 2s and 5s and remand with directions for the district court to enter a judgment of acquittal on these counts.
V. Money Laundering
Finally, the Government alleged that Silver laundered the proceeds of the Mesothelioma and Real Estate Schemes by investing them in high-yield, private investment vehicles with the help of Jordan Levy, a private investor.28 In May 2011, Silver instructed Levy to transfer one half of an investment to his wife to avoid publicly disclosing the full amount of the investment. There is no dispute
Silver argues that vacatur of his extortion and honest services fraud counts compels vacatur of his money laundering count as well. We disagree. Not only are the remaining counts of conviction sufficient to sustain his money laundering conviction, but because Silver knowingly transferred proceeds of the HCRA scheme within the limitations period, vacatur of all of his counts of conviction would not compel a different result.
The money laundering statute,
We are convinced, beyond a reasonable doubt, that a rational jury would have found that Silver laundered the proceeds of a criminal offense within the limitations period. See Bah, 574 F.3d at 114. As to the underlying criminal offense, it is clear that, but for the statute of limitations, even a properly charged jury would have convicted Silver of extortion and honest services fraud in relation to the HCRA scheme. Put differently, it is clear that Silver committed all elements of the criminal offense underlying his money laundering conviction, albeit outside the
Thus, we affirm Silver‘s conviction under Count 7s for money laundering.
* * *
So long as “curry[ing] favor” and “build[ing] a reservoir of goodwill” with politicians is legal, see Ganim, 510 F.3d at 146; Sun–Diamond, 526 U.S. at 405, the Government‘s burden in bribery prosecutions remains high. This case provides a useful illustration of that which is bribery and that which is not. With respect to the HCRA grants, Silver received a thing of value in return for exerting official influence on a particular matter. This is a classic example of bribery, and, but for the statute of limitations, Silver‘s conviction for the Mesothelioma Scheme would stand, regardless of the jury instructions.
CONCLUSION
For the foregoing reasons, we REVERSE the judgment and VACATE the conviction on Counts 1s, 2s, and 5s, and AFFIRM the conviction on Counts 3s, 4s, 6s, and 7s. We REMAND to the district court to dismiss the indictment with prejudice as it pertains to the reversed counts, for resentencing, and for such further proceedings as may be appropriate and consistent with this opinion with respect to the remaining counts.
I concur in the majority‘s excellent opinion. As the opinion makes clear, the “as opportunities arise” doctrine remains alive and well in our Circuit, and neither Hobbs Act extortion nor honest services fraud requires a meeting-of-the-minds agreement or the identification, at the time of the agreement, of the particular act to be performed. I agree that, although Sheldon Silver‘s convictions related to the Real Estate Scheme and money laundering should be affirmed, his convictions related to the Mesothelioma Scheme falter because the Government, which opted to proceed solely on an “as opportunities arise” theory, failed to identify a sufficiently specific, focused, and concrete question or matter relating to conduct falling within the statute of limitations.
I write separately to make two points about the quite narrow scope of today‘s opinion.
First, the opinion simply clarifies, without altering, the “as opportunities arise” doctrine that has long been part of our circuit precedent. It does so by confirming that the “as opportunities arise” theory described in United States v. Ganim, 510 F.3d 134 (2d Cir. 2007), “remains good law.” Majority Op. at 60. That “good law” includes Ganim‘s “rule that the jury ‘need not find that the specific act to be performed was identified at the time of the promise, nor need it
The majority opinion wisely leaves unaddressed another complicated issue. It refrains from prescribing how specific “either the payor or the official” must be in defining “the relevant matter or question” at the time of the promise. Majority Op. at 33–34. Instead, all the opinion requires is that there be more than a vague and “open-ended” promise to do whatever the official later decides might benefit the payor. Id. at 38–39, 55. What more is required is best left to district courts or future panels to iron out over time. For now, we determine only that the promise identified by the Government to anchor the counts of conviction for the Mesothelioma Scheme in this case falls short of supporting a bribery conviction.
The majority opinion is appropriately narrow in another important way. It confines its holding to the “as opportunities arise” theory of bribery defined in Ganim, observing that other schemes—sometimes referred to as the “stream of benefits” or “retainer” theories of bribery—are not even implicated in this case. Id. at 24 n.7. It is true that the majority does not in detail distinguish Ganim‘s “as opportunities arise” theory from these other theories of bribery. It nonetheless
Consider one example of a theory of bribery not at play in this case: a bribe to an official in exchange for a future favor, in the form of a future official act (a vote, for instance) that will be identified by the payor at a later date. Id. That bribery scheme, the majority explains, is not before us. Consider another example not captured by the “as opportunities arise” theory: a payment in exchange for a promise to take all future official actions to benefit the payor. The payment is not in exchange for a vague promise to act in the payor‘s general interests at discrete moments to be determined only at the official‘s discretion (as alleged in the Mesothelioma Scheme). Instead, it solicits a promise that the official will filter every official act through the lens of the payor‘s interests. In other words, the promise is not vague, amorphous, or subject only to the official‘s discretion of when and where to act. Although the matter that is the subject of the promise is broad in scope, its contours are clearly defined.
Neither of these examples fits the “as opportunities arise” theory analyzed in the majority opinion, but in each example the official “is in the pocket” of a private individual, and the requisite corrupt intent is beyond reasonable doubt.
Notes
136 S. Ct. at 2370–71 (emphases added). Because McDonnell‘s use of the term agreement is by reference to Evans, it is best understood as requiring the same mens rea as Evans—i.e., a knowing “promise.”Under this Court‘s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy“; it is enough that the official agree to do so. See Evans, 504 U.S. at 268. The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the “official act,” so long as he agrees to do so. A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an “official act” in return.