Second Circuit Grants Sheldon Silver New Trial Based on McDonnell-Linked Instructional Error


After Silver had been convicted and sentenced, the Supreme Court issued its decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which clarified the definition of an “official act” in honest services fraud and extortion charges. The Supreme Court, vacating the conviction of former Governor Robert McDonnell of Virginia, held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’” involving “a formal exercise of governmental power.” Id. at 2371–72.    Silver now appeals from his judgment of conviction and argues, primarily, that the District Court’s jury instructions defining an official act as “any action taken or to be taken under color of official authority” was erroneous under McDonnell. He additionally challenges the sufficiency of the evidence on all counts of conviction, arguing, among other things, that his money laundering conviction under 18 U.S.C. § 1957 required the Government to trace “dirty” funds comingled with “clean” funds.

Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error. We further hold that this error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for the verdict to stand.

Accordingly, we VACATE the District Court’s judgment of conviction on all counts and REMAND the cause to the District Court for such further proceedings as may be appropriate in the circumstances and consistent with this opinion.


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