SCOTUS Appeal by Ex-New York Pol Lacks Merit, DOJ Says

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By Madison Alder

The Justice Department Dec. 13 urged the U.S. Supreme Court not to review an appeal from former New York State Assembly Speaker Sheldon Silver (D), who wants the justices to weigh in on his vacated corruption case before he can be retried next year.

Silver’s 2015 conviction on money laundering and other charges were thrown out by a federal appeals court and sent back to a district court where prosecutors plan to try him again.

Silver sought high court intervention before that could happen based on its ruling in another case that has raised questions in certain areas over what constitutes political corruption.

Silver argued that there is a conflict in the lower courts over whether the government is required to trace funds withdrawn from a commingled bank account containing criminal and non-criminal funds in order to prove someone guilty of money laundering.

Minority View

The minority of circuits courts say the government has to trace the origin of funds withdrawn from a commingled account when amount of non-criminal funds in the account could have covered the transfer.

His case, if granted, could give the court an opportunity to further define federal anticorruption laws in the U.S., which many critics say are too vague.

Silver doesn’t provide any unique reasons for the court to intervene in his case before a final judgment is issued, the Justice Department said in its response filed with the Supreme Court Dec. 13.

Silver’s interpretation of the statute also comes from a very small minority of circuit courts, the Justice Department said. Two federal appeals courts—the Fifth and Ninth circuits—require the government to trace funds to prove money laundering, while seven other circuits say otherwise, the response brief said.

Steven F. Molo, a lawyer with MoloLamken LP who represents Silver, told Bloomberg BNA in an email that the issue his client presents “is ripe for review.”

“This is an important question impacting many cases and we hope the Court will agree that the time to resolve it is now,” Molo said.

Justice Department declined to comment.

Convictions Tossed

The U.S. Second Circuit Court of Appeals tossed Silver’s money laundering, honest services fraud, and extortion convictions in light of a new, narrowed definition of “official act” handed down by the Supreme Court in McDonnell v. United States.

That new definition, which requires a formal exercise of governmental power, did not comport with the instruction given to the jury in Silver’s case, the appeals court said.

Silver had originally been convicted after the government said he was linked to two schemes in which he preformed what the government defined as official acts in exchange for client recommendations he could give to law firms that would give him referral fees.

Silver’s retrial in the U.S. District Court for the Southern District of New York is tentatively set for April 16, 2018, depending on the Supreme Court’s response.

The case is Silver v. Untied States, U.S., No. 17-562, response filed 12/13/17 .

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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