In United States v. Dean Skelos and Adam Skelos, 2d Cir. Nos. 18-3421 & 18-3442 (Feb. 23, 2021), a panel of the Court (Walker, Sack, and Carney) affirms the Skeloses’ convictions, following a 2018 retrial, for various public-corruption and bribery related offenses (Dean Skelos was the Majority Leader of the New York State Senate and Adam Skelos is his adult son). Their earlier convictions, following a 2015 trial, had been vacated in light of the Supreme Court’s decision in “McDonnell v. United States, 136 S. Ct. 2355 (2016), which narrowed the definition of the ‘official act’ that a public official must exchange for benefits in order to be convicted of Hobbs Act extortion or honest services fraud, where those crimes have been defined by reference to the term ‘official act’ in the federal bribery statute, 18 U.S.C. § 201. Because the McDonnell definition conflicted with the broader definition used by the district court and the government at [the Skeloses’ 2015] trial,” the Circuit ordered a new trial in 2017. Op. 11; see United States v. Skelos, 707 F. App’x 733, 738 (2d Cir 2017).
Judge Walker wrote today’s opinion upholding the outcome of the 2018 retrial, in which “a second jury, receiving the modified instructions, convicted Dean and Adam Skelos on all counts.” Op. 11. Although the district court’s charge to the jury again conflicted with McDonnell in some respects, the Court concluded that the error was harmless as to both defendants.
The principal question on appeal was whether the Government’s “as opportunities arise” theory of bribery was properly charged to the jury at the retrial. This theory “requires the government to prove, in the context of Hobbs Act extortion, that a public official received a payment to which he was not entitled and, in return for that payment, ‘underst[ood] that he or she [was] expected as a result of the payment to exercise particular kinds of influence — i.e., on behalf of the payor — as specific opportunities arise.’ Put differently, this theory means that the government ‘does not have to prove an explicit promise to perform a particular act made at the time of payment” so long as the general nature of the act to be taken was understood at the time of the payment.” Op. 14-15.
McDonnell ruled, on the other hand, that in order to convict a public official of bribery, honest services fraud, or extortion “under color of official right,” the official must have accepted a payment in exchange for committing (or agreeing to commit) an “official act,” defined narrowly as a “formal exercise of governmental power” that is “specific and focused,” thus excluding more nebulous conduct (sometimes described as “routine political courtesies”) such as “[s]etting up a meeting, talking to another official, or organizing an event.” 136 S. Ct. at 2371-72; see Op. 15 (McDonnell defined “official act” as “a decision or action on a ‘question, matter, cause, suit, proceeding or controversy” that “involve[s] a formal exercise of governmental power” and must concern “something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”) . Judge Walker acknowledged that “McDonnell’s formulation raised the question of whether the action to be taken in the future by a public official under the ‘as opportunities arise’ theory of bribery is compatible with the heightened specificity of ‘official act’ required by McDonnell.” Op. 15.
But the Circuit answered this general question in the affirmative in United States v. Sheldon Silver, 948 F.3d 538, 552 (2d Cir. Jan. 21, 2020). Silver nonetheless cautioned that to conform to McDonnell, “some limitation” of the “as opportunities arise” theory was required: “[A]lthough McDonnell does not ‘require identification of a particular act of influence, . . . it requires identification of a particular question or matter to be influenced.’ Accordingly, we held that a jury must be required to find that, at the time the defendant accepted the relevant payment, he understood he was expected “‘to take official action on a specific and focused question or matter as the opportunities to take such action arose.’” Op. 16 (emphases in original) (quoting Silver).
The judge at the Skeloses’ retrial did not abide by this limitation: “The jury instructions in this case failed to require that the ‘specific and focused question or matter’ on which Dean Skelos was expected to take official action be identified at the time of the payment. The instructions required only that Skelos be expected to ‘perform official acts in exchange for the property.’ This left open the possibility that the jury could convict even if Skelos was expected to take official action on any question or matter in return for the payment.” Op. 16. Thus, “[a]lthough the jury was properly instructed that, for an act to qualify as an ‘official act,’ it must be taken on a ‘question or matter [that is] specific, focused, and concrete,’ the jury was not required to find that Skelos and the bribing party shared a specific enough understanding of the question or matter upon payment.” This was error under McDonnell and Silver. Op. 17.
But, alas, no harm, no foul. As to Dean Skelos, the Court pronounced itself “convinced beyond a reasonable doubt that a rational jury, if properly instructed, would have found that Dean Skelos entered each quid pro quo arrangement with the understanding that he was expected to ‘to take official action on a specific and focused question or matter as the opportunities to take such action arose.’ For each scheme, the government proved that Skelos understood he was expected to take actions in furtherance of concrete objectives in return for the unearned payments being provided to Adam.” Op. 18 (emphasis in original). The Court added that “the government’s theory of the case comported with the specificity required by Silver, even if the jury charge was overly broad in retrospect. The government argued in summation that Dean Skelos understood the payments to Adam were made in exchange for actions taken in these specifically identified matters.” Op. 19-20.
As to Adam Skelos, the Court concluded that “it is clear beyond a reasonable doubt that a properly instructed jury would have convicted Adam as well,” despite his contention that “there was no evidence that he knew his father had promised official action on any specific matter” and thus that “[a]t most . . . he had only general knowledge that his father was to take non-specific official action in exchange for the payments [he] was receiving.” Op. 20. “[V]iewed in the context of the full record of Adam’s involvement in his father’s legislative affairs and Adam’s actions in the other schemes, it is clear to us that a properly instructed jury would find that Adam understood his father to be taking specific official action in exchange for the payout.” Op. 21.