Cecilia DowdJul 13, 2017, 5:37 pmJul 13, 2017, 7:59 pm

Conviction of ex-NY Assembly speaker tossed; retrial sought

Sheldon Silver's conviction overturned by Supreme Court over the definition of an official act and what it constitutes

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NEW YORK (AP) — The corruption conviction of former Assembly Speaker Sheldon Silver was overturned Thursday by a federal appeals court that found sufficient evidence but flawed jury instructions in light of a recent Supreme Court ruling narrowing the definition of what it takes to convict a public official. Prosecutors vowed to retry him.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan said it could not conclude with certainty that a rational jury would have convicted the Democrat if it had been properly instructed on what constitutes an "official act."

"We recognize that many would view the facts adduced at Silver's trial with distaste," the 2nd Circuit said. "The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty."

Still, the court gave prosecutors encouragement that a retrial has merit, and acting U.S. Attorney Joon H. Kim said the government will seek one.

"Although this decision puts on hold the justice that New Yorkers got upon Silver's conviction, we look forward to presenting to another jury the evidence of decades-long corruption by one of the most powerful politicians in New York State history," Kim wrote.

Silver was sentenced last year to 12 years in prison after he was convicted of collecting $4 million in kickbacks from a cancer researcher and real estate developers in return for using his powerful post to help them. He has not had to report to prison while he awaited the outcome of his appeal.

"We are grateful the court saw it our way and reversed the conviction on all counts," Silver's lawyers said. He had been convicted of honest services fraud, extortion and money laundering.

The gray-haired, bespectacled Silver was first elected in 1976 and served as speaker for 21 years, becoming the classic Albany insider with the power to control bills and state spending singlehandedly in behind-the-scenes negotiations. Known for his often inscrutable comments and wary, phlegmatic demeanor, Silver gained the nickname "the Sphinx."

Along with the leader of the Senate and the governor, Silver was one of the "three men in a room" who every year negotiated the state budget and important legislation behind closed doors.

Silver's former state Senate counterpart, Republican ex-Majority Leader Dean Skelos, was found guilty, at a separate trial, of using his position to arrange payments and a job for his son. His appeal is pending.

In Silver's case, the appeals court said the judge's instructions on the law as it pertained to what constitutes an "official act" were overbroad, just as the U.S. Supreme Court found when it recently reversed the conviction of Virginia Republican ex-Gov. Bob McDonnell. The 2nd Circuit did, however, rule that the evidence was sufficient to prove the charges against Silver.

"Like the improper instruction in McDonnell, the plain language of the instruction at Silver's trial captured lawful conduct, such as arranging meetings or hosting events with constituents," the appeals court said.

In reversing McDonnell's conviction on charges he illegally accepted more than $175,000 in loans and gifts from a businessman, the Supreme Court raised the standards federal prosecutors must use when they accuse public officials of wrongdoing.

Preet Bharara, the U.S. attorney who prosecuted Silver, wrote in a tweet that he was confident Silver would be convicted at his retrial.

Over 30 state lawmakers have left office under a cloud of criminal or ethical allegations since 2000. More than a dozen have been convicted of charges including authorizing bribes to get on a ballot, diverting money meant for community programs into a campaign and skimming funds from contributions to a Little League baseball program.

Democratic Gov. Andrew Cuomo has proposed changes to New York's anti-corruption laws after Silver's and Skelos' convictions. But the Republican-led Senate and Democratic Assembly are deadlocked on proposed reforms.

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