The Second Circuit (Winter, Raggi, Hellerstein by designation) yesterday vacated by summary order the convictions of former New York State Senate Majority Leader Dean Skelos and his son Adam Skelos.  Dean and Adam Skelos were convicted of Hobbs Act conspiracy and substantive offenses, honest services wire fraud conspiracy, and federal program bribery, after a jury trial in which the government presented evidence that the elder Skelos had taken official actions to benefit certain companies in exchange for payments to his son.  Much like the conviction of his fellow senior state legislator, Assembly Speaker Sheldon Silver, the conviction was reversed in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of an “official act.”  As the Court rejected the defense contention that insufficient evidence supported the convictions, both Skelos and his son will be retried by the U.S. Attorney’s Office for the Southern District of New York.  Like the Silver reversal, this ruling reflects the ways in which the McDonnell decision has complicated that office’s investigation and prosecution of public corruption in New York state government.

The Court’s short ruling had three components.  First, the Court reversed the convictions based on the jury instruction error, holding that the error was not harmless beyond a reasonable doubt.  Second, the Court allowed retrial by concluding that the evidence of guilt was sufficient to sustain the convictions.  Third, the Court found that the testimony of one government witness was incorrectly admitted in light of McDonnell, as the testimony related only to acts now found to be outside of the definition of “official acts.”  We address each aspect of the Court’s ruling in turn.

First, the Court had little trouble, especially in the aftermath of Silver, holding that the jury instructions could not be reconciled with McDonnell.  The district court here defined an official act as including, inter alia, “any act taken under color of official authority.”  This specific type of instruction was found to be error in McDonnell and also in Silver.  The Court also had little difficulty in finding that this error was not harmless.  As in Silver, the government presented evidence of acts that passed muster under McDonnell, but also argued that acts outside of the McDonnell definition were official acts.  For example, Senator Skelos was alleged to have arranged certain meetings in exchange for the receipt of benefits from others.  However, setting up meetings are not official acts under McDonnell.  Chief Justice Roberts specifically explained that “[c]onscientious public officials arrange meetings for constituents . . . all the time” and that this is part of “democratic discourse.”  The Court rejected the government’s efforts to analogize this case to United States v. Boyland, in which the Second Circuit turned aside an effort to reverse a conviction based on McDonnell. In Boyland, very little of the government’s case related to official acts outside of the McDonnell definition—only a “stray mention” was made.  Given that the error was not harmless beyond a reasonable doubt, the Court vacated the defendants’ convictions.

Second, the Court agreed with the government that the evidence was sufficient to support conviction.  Sufficiency analysis is conducted with a very lenient standard that calls for affirmance so long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  The Court rejected the defense argument that the government presented insufficient evidence of a quid pro quo agreement.  The Court found “abundant record evidence that Dean Skelos traded his vote for legislation” in exchange for benefits provided to his son, Adam, such as a $20,000 payment for no work performed for a real estate firm and for a no-show job at a title insurance company.  The Court also rejected the argument that the government did not present enough evidence of official acts that complied with McDonnell, finding that Skelos did far more than arrange meetings.  “Using one’s influence as a high ranking state official to push through county legislation and to bestow a county-issued contract are indisputably formal exercises of governmental power constituting official acts under McDonnell.”

Third, the Court held that at any retrial, the evidence of official acts must all comply with McDonnell.  One witness, State Senator Tony Avella, testified that “assist[ing] individuals or companies in getting meetings with state agencies” was part of a state senator’s official duties.  The government argued from this testimony that Skelos engaged in official acts in exchange for receiving benefits.  “[S]uch testimony at odds with McDonnell” may not be offered upon retrial.  Given that the conviction is being vacated due to the erroneous jury instruction, there was no need for the Second Circuit to consider whether this error alone required retrial.

While the government asked the Second Circuit to uphold the Skelos convictions in light of its Boyland decision (which affirmed a conviction notwithstanding a “stray reference” in the jury instructions to an overbroad definition of “official acts”), the Court rejected this argument and found that it could not affirm.  The Court’s analysis was very straightforward:  given that the government’s proof involved some acts that complied with McDonnell and others that did not, there was no way for the Court to find that the error was harmless beyond a reasonable doubt.  The Court’s sufficiency analysis leaves little question that the Court believes that there is plenty of evidence of guilt, but this was not sufficient to affirm given the trial record and the argument of counsel.  Those arguments, in particular, make it hard to know whether the jury convicted based on the McDonnell-compliant official acts.  The government argued for a broad interpretation of the definition of an official act, not a narrow one, and this seemed to weigh heavily in the Court’s analysis. 

The timing of the Skelos trial left the government and the district court in a difficult position.  In McDonnell, the Supreme Court stayed the issuance of the mandate on August 31, 2015, allowing McDonnell to avoid surrender for service of his sentence even before the Supreme Court granted his cert petition.  The cert petition was filed on October 13, 2015 and cert was granted on January 15, 2016.  Parallel to these events, Skelos was convicted on December 11, 2015.  In order to avoid today’s outcome, the government would have had to propose a narrower definition of “official act” than the law, prior to McDonnell, would have required.  With the benefit of hindsight, this might have been wise, but it is understandable why the government made the decision that it made.  According to the panel, the defense team at trial did not propose specific alternative language, so it is not even a matter of the government opposing a defense request to charge.  In any event, both Silver and Skelos will now have a second opportunity to defend themselves from the serious corruption charges that ended their careers.  To quote the former U.S. Attorney Preet Bharara, we will all have to stay tuned.