On September 26, 2017, the United States Court of Appeals for the Second Circuit overturned the political corruption conviction of the former majority leader of the New York State Senate, Dean G. Skelos, and his son, Adam B. Skelos. United States v. Skelos, et al., No. 16-1618 (2d Cir. 2017). The Second Circuit’s decision was based on the district court’s erroneous jury instruction. Though the instruction was consistent with precedent at the time of trial, the Circuit Court found that the instruction was infirm given the Supreme Court’s intervening decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The latter decision limited the scope of what can be construed as an “official act,” and the Second Circuit concluded that the trial court’s instructions were too broad. The Court further found that the error was not harmless beyond a reasonable doubt, since the prosecution in Skelos had rested its argument in part on conduct now considered lawful after McDonnell, and the jury reasonably could have based its decision on that evidence. The basis for this decision was similar to the Circuit’s reversal of the conviction of Sheldon Silver (former Speaker of the New York State Assembly), as previously reported on July 18, 2017. Shearman & Sterling LLP: Government/Regulatory Enforcement, Second Circuit Overturns Watershed Conviction Of Sheldon Silver Based On Recent Supreme Court Decision (July 18, 2017).

The Second Circuit did, however, reject defendants’ claim that there was insufficient evidence to sustain a conviction under McDonnell, and the U.S. Attorney’s Office has made clear its intention to move forward with the case. On the same day the Skelos decision was announced, Acting U.S. Attorney Joon H. Kim stated that his office “look[s] forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos and Adam Skelos’s guilt,” and reaffirmed his intention to prosecute “corruption in New York State government.” Press Release, DOJ, U.S. Attorney’s Office S.D.N.Y., Statement of Acting United States Attorney Joon H. Kim on the Decision of the Court of Appeals in U.S. v. Dean Skelos and Adam Skelos (Sept. 26, 2017).

While McDonnell ultimately may prove to be a mere road bump in the Government’s prosecutions of Silver and Skelos, its real impact will be in pending political corruption investigations that are not public. By narrowing the scope of an “official act,” prosecutors may be forced to close certain investigations in which the evidence does not meet this new standard. Silver and Skelos will serve as good “test cases” to see how juries view these cases with the new, heightened standards.

United States v. Skelos, et al. 

United States v. Silver 

McDonnell v. United States 

Press Release, Statement of Acting US Attorney Joon H. Kim (Sept 26, 2017)