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Why Isn’t Sheldon Silver In Prison?

In my August column, Why Sheldon Silver Is Headed To Prison, I stated offhandedly that “Silver will surrender in October.”

Thanks to a panel of the United States Court of Appeals for the Second Circuit, Sheldon Silver remains free on bail at least until December.

The New York Times cast the turn of events as further proof of Silver’s political teflon, the luck of a public official who has managed to avoid accountability over his 40-year career.

Not quite. Silver’s latest dose of good fortune has nothing to do with his deftness. Separate juries convicted him twice on seven counts of corruption.

Nor does Silver’s continuing freedom speak to the merits of his case, as I explain below.

Silver’s reprieve has more to do with the unfortunate tendency of some judges to treat white collar criminals with more consideration than the ordinary convict.

The latest chapter in Silver’s saga involved the former Speaker’s motion to stay out of prison on bail, pending the outcome of his appeal. The courts had granted a similar motion after Silver’s first conviction.

Now, however, the trial judge, Valerie Caproni, said no.

In contrast with pre-trial bail, after a conviction, the rules favor prosecutors. The district court explained that federal law requires a convicted criminal to start serving the sentence right away.

However, if a convict can show that he won’t flee, that he does not pose a danger to the community, and most importantly, that the appeal presents a “close question” of law that could “go either way,” he can postpone incarceration.

Judge Caproni conceded that Silver would stay put and would not hurt anyone. However, she determined that he failed to overcome the third obstacle.

As Silver’s lawyer admitted at the later oral argument in front of the Second Circuit, the judge on retrial had cured the deficiency the court of appeals had found in the jury instructions the first time around. In accordance with the Supreme Court’s decision McDonnell v. United States, the judge had charged the jury that they could convict Silver only of trading official acts — such as directing state funds he controlled or pushing legislation or casting votes on state boards — for money.

Instead, Silver claimed that the second set of instructions violated McDonnell in other ways. He argued that, in order to convict him of bribery, the government had to prove the existence of a contract. Accordingly, his partners in greed had to have agreed, either explicitly or implicitly, that they were paying him for favors as opposed to buying his good will. Judge Caproni called the claim frivolous.

The prosecutor correctly explained at the hearing in the court of appeals (Audio at 45:00-47:00) that Congress outlawed soliciting and receiving bribes, not just conspiracy.

Soliciting involves demanding, even if the other party refuses. Receiving, unlike conspiracy, focuses only on the public official.

The evidence showed that Silver approached the NYU researcher and the real estate developers, who, in response, bribed him. Moreover, sting operations involve law enforcement agents, who have no intention of paying, inducing a public official to agree to accept bribes. No one claims that sting operations must result in acquittals.

Judge Caproni concluded, logically, that Silver, at 74 years old, pursued his motion as a maneuver to postpone his day of reckoning. She ordered him to prison as scheduled.

Silver made an additional argument before the appellate panel. He said that McDonnell required the briber to seek a specific favor from the public official, not just a general stream of benefits.

Not so. The case added the element of “official act” to the crime, but not that of specific favors.

What happened? The audio recording of the argument reveals that at least one judge saw no point in sending Mr. Silver to jail pending his appeal.

He posed no risk of flight or danger to the community (Audio at 51:21). At another point, a judge expressed his disinclination to decide a legal issue in a case with a large record, on a motion without full briefing. (Audio at 36:59).

Flight risk or danger to others does not end the inquiry. Judges reach legal conclusions on motions all the time, as with injunctions. The judge or judges empathized with a white-collar criminal.

Interestingly, the decision of the court of appeals smacks of compromise. Unlike the first time, the judges expedited the merits appeal and Silver could go to prison as soon as one week after argument (Audio at 59:00). ​

In late October, in a case parallel to Silver’s, U.S. District Judge Kimba Wood in Manhattan resentenced Dean Skelos, the former majority leader of the State Senate, to four years, three months for using his office to personal gain. It remains to be seen whether Skelos can delay his prison term.

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