By John Riley
A Manhattan federal appeals court on Tuesday overturned the corruption conviction of former Senate leader Dean Skelos, knocking down a second pillar of former U.S. Attorney Preet Bharara's clean-up Albany campaign on the same grounds it reversed former Assembly speaker Sheldon Silver's conviction a few months ago.
The 2d U.S. Circuit Court of Appeals said the conviction of Skelos and his son Adam for using Dean's influence to extort financial benefits for Adam had to be overturned because the jury charge didn't comply with a new Supreme Court ruling narrowing federal anti-corruption laws.
"Because we cannot conclude that the charging error was harmless beyond a reasonable doubt, we are obliged to vacate the convictions," Judges Reena Raggi, Ralph Winter and Alvin Hellerstein said in an unsigned order.
The three-judge panel did, however, rule that there was sufficient evidence for the charges to support a conviction of quid-pro-quo bribery if a jury was instructed properly, and said the Skeloses can be retried.
"The abundant record evidence that Dean Skelos traded his vote for legislation...in exchange for benefits to his son... is sufficient to allow a reasonable jury to infer the existence of a quid pro quo arrangement," the judges said.
Acting U.S. Attorney Joon Kim, Bharara's replacement, said Tuesday that his office was "disappointed" and planned to aggressively pursue a retrial of the two Skeloses.
"We look forward to a prompt retrial where we will have another opportunity to present the overwhelming evidence of Dean Skelos and Adam Skelos's guilt and again give the public the justice it deserves," Kim said. "We are as committed as ever to doing everything we can to keep our government honest."
Bharara, in a tweet, called the ruling "not unexpected" and complained that the Supreme Court ruling had "made it harder to punish corruption, but justice should prevail here."
But Alexandra Shapiro, the attorney who handled Skelos' appeal, applauded the decision and said the former senator should have never been charged with a crime.
"Senator Skelos is grateful for the court's careful consideration of the issues and looks forward to the next steps," Shapiro said Tuesday in an email. "We believe that as events unfold it is going to become clear that this is a case that never should have been brought."
Dean Skelos, 59, and Adam, 34, both of Rockville Centre, were convicted in 2015 of using Dean's clout in three schemes to squeeze Physicians' Reciprocal Insurers, a Roslyn malpractice firm, New Hyde Park developer Glenwood Management, and Nassau County storm water contractor AbTech Industries to help Adam.
They were sentenced, respectively, to five and 6-1/2 year prison terms by Manhattan U.S. District Judge Kimba Wood, but have stayed out while their appeals were pending.
The Supreme Court, in a case last year involving former Virginia Gov. Robert McDonnell, ruled that corruption convictions could only be based on performance of an "official act" that represented a formal exercise of government power -- not just a phone call or a meeting with a lobbyist.
Skelos was accused of some acts that qualified -- such as votes on legislation sought by Physicians Reciprocal and Glenwood -- and others that might not have, such as meeting with lobbyists and arranging for access to state agencies.
The 2d Circuit said that in the absence of a proper instruction it was impossible to tell whether the jury convicted on the basis of something that qualified as an official act, or something that didn't.".
"Although the government principally advanced a theory that Dean Skelos's arrangement for or participation in certain meetings constituted circumstantial evidence of a quid pro quo for legislative votes, it also argued in the alternative that the meetings themselves satisfied the official act requirement," the court said.
Silver's conviction of doing favors for a doctor and two real estate companies that funneled legal fees to him was overturned in July on the same grounds. He is seeking a ruling from the Supreme Court to bar a retrial, but if his request is rejected his new trial has been set for next April.