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Second Circuit Ruling Clarifies Post-McDonnell Public Corruption

On Tuesday, former New York State Assembly Speaker Sheldon Silver received a welcomed victory, albeit partial, in the Government’s long running prosecution accusing him of fraud, extortion and money laundering. In its decision, the Second Circuit further narrowed what constitutes honest services fraud in dealings between lawmakers, lobbyists and constituents.

Silver has been facing a seven year sentence following his 2018 conviction for influence-peddling schemes while he was speaker. The court had previously granted Silver a new trial following the Supreme Court’s decision in McDonnell v. United States. There, the Court overturned the conviction of former Virginia Governor Bob McDonnell by ruling what constituted an “official act” in exchange for a bribe. The Supreme Court made clear that an official act must be a formal exercise of governmental power. Armed with the precedent in McDonnell, Silver’s appeal focused on the connection between a bribe and an official act. Silver argued that prosecutors cannot criminally charge public corruption based on a bribe in exchange for doing official favors “as opportunities arise.”

As the Second Circuit said, “this case provides a useful illustration of that which is bribery and that which is not.” The court explained that bribery prosecutions do not require a common criminal intent or purpose, but the court went on to explain that an official who merely accepts a thing of value in an otherwise-legal manner has not committed a crime. If that official later acts to the benefit of the payor, there is still no crime. But if—and only if—at the time the official accepted the payment, he understood it was in exchange for official influence on some specific matter involving the exercise of an official act, a crime has been committed. In other words, it is not advance identification of the particular act. Instead, the law requires that the official understand the particular question or matter to be influenced. 

The case is United States v. Silver, No. 18-2380, 2020 WL 284426, at *29 (2d Cir. Jan. 21, 2020).

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 23


About this Author

Brian F. McEvoy, Polsinelli PC, Atlanta, white collar criminal defense lawyer, health care fraud matters attorney

Brian McEvoy is an accomplished litigator with a well-earned reputation for working tirelessly to achieve the best outcomes for clients and for thinking creatively and strategically to resolve difficult problems with efficiency and professionalism. Brian is a former federal prosecutor with a practice focus on white collar criminal defense and a special emphasis in health care fraud matters. During his service as a federal prosecutor, he received special commendation from the Department of Health and Human Services by receiving the Inspector General's Integrity Award for...


When a client turns to William Ezzell, they can expect an attorney keenly focused on learning who they are and what they do. He is genuinely passionate about understanding the intricacies unique to each client’s business, and how they view the world from their perspective. William combines this passion with his diverse practice history to further a collective goal: the best possible outcome. As a member of the firm’s Government Investigations and White Collar Defense Group, William devotes the majority of his practice to representing companies and individuals faced with white collar criminal matters, including the False Claims Act and the Anti-Kickback Statute.