Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the Supreme Court in McDonnell interpreted the “official act” requirement far more narrowly on constitutional avoidance grounds.

The Second Circuit held that the erroneous jury instruction was not harmless, and did not reach the question of whether the defendants were prejudiced by the erroneous testimony. The government’s primary theory of liability was that Dean Skelos traded legislative votes — undeniably an “official act” — for a no-show job and other benefits for his son. (The Circuit rejected the defendants’ sufficiency of the evidence challenge on the basis that the government adequately proved this theory). In the alternative, however, the government relied on the fact that Skelos arranged for meetings between those who enriched his son and New York State officials. This theory of liability was incompatible with McDonnell’s interpretation of the “official act” requirement.

The Supreme Court previously overturned Sheldon Silver’s convictions based on jury instructions that failed to conform to McDonnell‘s narrow definition of the “official act” requirement. That opinion is available here.