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WHITE-COLLAR CRIME | MONDAY, FEBRUARY 8, 2016 | S13

Jury Charge
ond Circuit’s prior decision in United States v. Alisi, 308 New York Times, Dec. 3, 2015, at A28.
§§2C1.1 & 2B1.1(b)(1)(J). While former Assembly Speak-
F.3d 144, 151 n.4 (2d Cir. 2002) in favor of a holding that even following Sun-Diamond, actions that fall within the 25. See United States v. Anderson, 509 F.2d 312, 332
(D.C. Cir. 1974) (“The payment and the receipt of a bribe er Silver’s actual sentence likely will be far less, the pros- pect of facing 20-25 years in prison—that is, at age 72,
scope of oficial acts under Birdsall, “such as speaking are not interdependent offenses, for obviously the do- for the rest of his life—is a sobering one indeed. Beyond
with aides and arranging meetings,” can constitute of- nor’s intent may differ completely from the donee’s.”).
that daunting reality, of course, remains the question
« Continued from page S12
icial acts. Skelos, at n.1. Accord United States v. Biaggi, 26. John Riley, “Sheldon Silver’s fate will soon be in of whether such a broad deinition of bribery in these
Silver received bribes or kickbacks as part of the 853 F.2d 89, 97 (2d Cir. 1988) (rejecting “suggestion that the hands of a jury,” Newsday, Nov. 24, 2015 (“The de- cases is sustainable under the law. At any rate, Skelos’
scheme to defraud. A bribe occurs when a pub- lic oficial corruptly seeks or accepts, directly a congressman’s only oficial acts . are acts in the leg- islative process itself” in favor of recognition of reality velopers didn’t even know a bribe was being paid when it was supposedly being paid? It has to be the strangest sentencing currently is scheduled for March 2016, with Silver’s sentencing on the calendar for April 2016. These
or indirectly, something of value from another that oficial acts also encompass “all of the acts normally quid pro quo ever. What kind of bribe is that?”) (defense dates may be affected, however, by the impending deci-
person with the intent to be inluenced in the thought to constitute a congressman’s legitimate use of summation).
sion of the Supreme Court in McDonnell before the end
performance of his public duties. A kickback is his ofice”); cf. Alisi, 308 F.3d at 151 n.4 (Winter, J.) (“We 27. Cf. Evans, 504 U.S. at 274 (Kennedy, J., concurring) of June.
similar. A kickback occurs when a public oficial corruptly seeks or accepts, directly or indirectly, do not agree that Sun-Diamond requires us to deine the crime of bribery narrowly. Sun-Diamond says nothing (“The inducement from the public oficial is criminal if it is express or if it is implied from his words and actions, 32. See Evans, 504 U.S. at 268 (“the Government need only show that a public oficial has obtained a payment
something of value from another person with about bribery.”). Judge Wood’s decision and speciically so long as he intends it to be so and the payor so inter- to which he was not entitled, knowing that the payment
the intent to be inluenced in the performance of her reliance on McDonnell, however, may not survive prets it.”) (emphasis added).
was made in return for oficial acts”).
his public duties, and the inluenced public act review by the Supreme Court. See Reply to Br. in Opp. 28. John Riley and William Murphy, “Developer testi- 33. In McDonnell v. United States, the Supreme Court
itself provides the source of funds to be ‘kicked to Cert. Pet. at 6, McDonnell v. United States, 2015 WL ies he didn’t know about Sheldon Silver’s share of re- just last month granted certiorari on the following ques-
back.’. The Government must prove that a bribe or kickback was sought or received by Mr. 9302651 (No. 15-474) (“The Fourth Circuit’s rule is thus that, even if an oficial never urges a speciic governmen- ferral fees,” Nov. 17, 2015; Benjamin Weiser and Susanne Craig, “Lobbyist Cites Unease Over Payments to Sheldon tion presented: “Whether ‘oficial action’ under the con- trolling fraud statutes is limited to exercising actual gov-
Silver, directly or indirectly, in exchange for the tal decision, no employee intuits any directive, and no Silver,” The New York Times, Nov. 17, 2015, at A19.
ernmental power, threatening to exercise such power, or
promise of performance of oficial action. Oficial decision is ever made—a jury can still infer attempted 29. Christine Simmons, “Firm Was Wary of Ending Sil- pressuring others to exercise such power, and whether
action includes any action taken or to be taken ‘inluence’ and convict.”) (emphasis in original).
ver Fee Sharing, Witness Testiies,” NYLJ, Nov. 17, 2015.
the jury must be so instructed; or, if not so limited,
under color of oficial authority. The Government does not have to prove that there was an express 13. McDonnell, 792 F.3d at 510.
14. See Evans v. United States, 504 U.S. 255, 268 (1992) 30. Christine Simmons, “Witness Describes Pressure From Adam Skelos About Jobs,” NYLJ, Nov. 23, 2015.
whether the Hobbs Act and honest-services fraud stat- utes are unconstitutional.” 84 U.S.L.W. 966, cert. granted
or explicit agreement that oficial actions would (Hobbs Act); United States v. Ring, 706 F.3d 460, 467 (D.C. 31. To underscore the severity of the consequence of (U.S. Jan. 15, 2016) (No. 15-474). Oral argument in the
be taken or that any particular action would be Cir. 2013) (honest services fraud); United States v. Bruno, conviction and, in that regard, the signiicance of wheth- case is expected during April 2016, with a decision by
taken in exchange for the bribe or kickback. The 661 F.3d 733, 743 (2d Cir. 2011) (same).
er the conduct involved truly amounted to bribery, ex- the Supreme Court before the close of this year’s term at
payment and the receipt of a bribe are not in- 15. McDonnell, 792 F.3d at 510.
tortion and honest services fraud, it is worth noting that the end of June 2016. Washington Post, “Supreme Court
terdependent offenses because the intent of the party giving the thing of value may be different 16. United States v. Coyne, 4 F.3d 100, 113-14 (2d Cir. 1993).
the guidelines range in the Silver case, for example, is ex- pected to be 235-293 months’ imprisonment. See U.S.S.G.
will review corruption conviction of former Va. Governor Robert McDonnell,” Jan. 15, 2016.
from the intent of the party receiving the thing 17. 510 F.3d 134 (2d Cir. 2007) (Sotomayor, J.).
of value. Therefore, the Government only has to 18. Id. at 142-43. See also Coyne, 4 F.3d at 114. Ganim
prove that Mr. Silver—not the bribe giver—un- is also of recent public interest due to the unusual (to
derstood that, as a result of the bribe or kick- say the least) turn of events that after serving a seven- year sentence following afirmance by the Second Circuit
back, he was expected to exercise oficial inlu- ence or make oficial decisions for the beneit of of his 2003 conviction on federal corruption charges as
the payor and, at the time the bribe or kickback mayor of Bridgeport, Conn., he ran again upon release
was accepted, intended to do so as speciic op- from prison and was re-elected as Bridgeport’s mayor—
portunities arose. If you ind that Mr. Silver un- with the endorsement of the FBI agent who helped pros-
derstood that the beneits were provided solely to cultivate goodwill or to nurture a relationship ecute him! See Kristin Hussey, “Joseph Ganim, Disgraced Ex-Mayor of Bridgeport, Conn., Wins Back Job,” The New
with the person or entity who provided the ben- York Times, Nov. 4, 2015, at A26.
eit, and not in exchange for any oficial action, 19. United States v. Menendez, et al., 15 Cr. 155 (WHW),
then this element will not have been proven. On 2015 WL 5915480 (DNJ Oct. 8, 2015).
the other hand, if you ind that the Government 20. Charles Toutant, “Judge ‘Confused’ by Prosecu- tors’ Theory in Menendez Case,” NJLJ, Sept. 17, 2015.
has proven that Mr. Silver accepted payments or things of value intending, at least in part, to take That case is delayed in proceeding to trial while the
oficial action in return for those payments as the defendant takes an interlocutory appeal to the Third
opportunities arose, then this element will have Circuit on the constitutional issue relative to the defen-
been proven.”
dant’s alleged immunity as a U.S. Senator from prosecu-
United States v. Silver, 15 Cr. 93 (VEC), ECF Doc. 135 at tion under the Speech or Debate Clause of Section VI of Article I of the Constitution. The case is not expected to
17-18 (SDNY), iled Nov. 24, 2015 (jury charge).
2. That is to say, for example in the Silver case, con- go to trial until at least October 2016.
licts arose by accepting undisclosed gifts from Manhat- 21. McCormick v. United States, 500 U.S. 257, 273
tan real estate developers while presiding, as Speaker (1991). See also Buckley v. Valeo, 424 U.S. 1, 16-19 (1976)
of the New York Assembly, over legislation, including (per curiam) (holding that campaign contributions and
the renewal of rent control laws and the New York Real expenditures are speech under First Amendment requir- ing special protection). In a related context, the Seventh
Property Tax Law §421-a tax abatement exemption, that was worth hundreds of millions of dollars to the com- Circuit recently held that political logrolling in the form
mercial real estate industry in New York City. See Jillian of trading then Illinois Governor Blagojevich’s appoint-
Jorgensen, “How Sheldon Silver Became a Convicted ment to ill the vacancy of a U.S. Senate seat occasioned
Felon Thanks to Shady Real Estate Relationships,” NY by Pres. Barack Obama’s ascendency to the Presidency in exchange for promises of post-gubernatorial employ-
Observer, Jan. 13, 2016.
ment insuficient unless there was an explicit promise of
3. 561 U.S. 358 (2010).
4. United States v. Silver, 15 Cr. 93 (VEC), 2015 WL a private sector salary or other private payment. United
4496295 (SDNY July 24, 2015). Or, as Judge Caproni ex- States v. Blagojevich, 794 F.3d 729 (7th Cir. 2015) (Easter-
plained more precisely:
brook, J.) (“a proposal to trade one public act for anoth-
[T]he Government is not charging Silver based er, a form of logrolling, is fundamentally unlike the swap of an oficial act for a private payment”), pet. for cert.
on his undisclosed relationships with the law iled, 84 U.S.L.W. 3304 (U.S. Nov. 17, 2015) (No. 15-664).
irms; it is charging him with misusing his oficial position to bestow beneits on parties [e.g., real 22. Evans v. United States, 504 U.S. 255, 274 (1992)
estate developers] that paid for his favor. Silver’s (Kennedy, J., concurring) (“[t]he [public] oficial and the Give Your Clients a Gift with
relationship with [the law irms is] relevant only payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by
to understanding how [the real estate develop- knowing winks and nods”).
Real Value.
ers] funneled bribes to Silver to ‘compensate’ 23. Compare Reply to Br. in Opp. to Cert. Pet. at 7,
him for the misuse of his oficial position.
McDonnell v. United States, 2015 WL 9302651 (U.S. Dec.
Id. n.13 (emphasis in original).
5. 18 U.S.C. §§1341 and 1343, respectively.
21, 2015) (No. 15-474) (district court in instructing jury Grant your clients unlimited access to
6. 18 U.S.C. §1346.
“quot[ed] a complex statutory deinition [of oficial ac- tion] along with a lengthy disquisition on what conviction
7. 483 U.S. 350 (1987).
does not require—without even a word clarifying what it award-winning legal news coverage with an
8. Skilling, 561 U.S. at 409 (emphasis in original).
does require (namely, taking or urging a governmental de- ALM Gift Subscription.
9. 18 U.S.C. §1951(b)(2).
cision)”) (emphasis in original) with United States v. Silver,
10. The general substantive federal bribery and gratu-
ity statute by its terms applies only to federal govern- 15 Cr. 93 (VEC), ECF Doc. 135 at 24-25 (SDNY), iled Nov. 24, 2015 (jury charge) (“. it is not necessary that Mr. Silver
ment oficials. 18 U.S.C. §§201(a), (b) & (c); see United or the person giving the property state the quid pro quo
States v. Brewster, 408 U.S. 501, 526 (1972) (bribery). As in express or explicit terms. A quid pro quo can be implied
the Skelos case demonstrates, however, solicitation of from Mr. Silver’s words and actions, so long as you ind Get Started
bribes and gratuities can be prosecuted against a state governmental oficial to the extent that the gift giver that Mr. Silver intended there to be a quid pro quo . . The
received in excess of $10,000 of funds under a federal Government does not need to prove that Mr. Silver could or actually did perform any speciic oficial act on behalf Visit at.law.com/gift
program of assistance, pursuant to 18 U.S.C. §666(a)(1) of the extorted party, it does not matter if the actions he
(B), otherwise known as the federal funds bribery stat- took were desirable or beneicial or that he would have
ute. See United States v. Skelos, et al., Indictment (S1) 15 taken the same action regardless of the receipt of property
Cr. 317 (KMW), Counts 6-8.
11. 526 U.S. 398, 409 (1999).
from the extorted party.”) (emphasis added).
24. Editorial, “The Year in Corruption,” Jan. 1, 2016,
12. United States v. Skelos, et. al, 15 Cr. 317 (KMW), 2015 New York Post (“Glenwood ladled out $14 million or so
WL 6159326 (SDNY Oct. 20, 2015). Judge Wood instead to buy favors . . The money is hopelessly tainted, even
cited, inter alia, the Supreme Court’s 100-year-old deci- if no favors were directly exchanged.”); but cf. Rebecca NewYorkLawJournal.com
sion in United States v. Birdsall, 233 U.S. 223, 231 (1914), the Fourth Circuit’s recent decision in United States v. Davis O’Brien and Joe Palazzolo, “Legal Murkiness Hov-
McDonnell, 792 F.3d 478 (4th Cir. 2015), cert. granted, 84 ers Over Sheldon Silver Case,” Wall Street Journal, Jan. 23, 2015; Benjamin Weiser, “Sheldon Silver’s Lawyers Are
U.S.L.W. 966 (U.S. Jan. 15, 2016) No. 15-474 and the Sec-
Likely to Argue U.S. Failed to Prove Quid Pro Quo,” The