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Media Alerts - United States v. Skelos
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September 26, 2017
  United States v. Skelos
Headline: Second Circuit Vacates Convictions of Former New York Senate Majority Leader and His Son, and Remands for New Trial

Area of Law: Criminal

Issue Presented: Whether, in light of the Supreme Court's McDonnell decision, the public corruption convictions of former New York State Senate Majority Leader Dean Skelos and his son, Adam, must be vacated.

Brief Summary: In 2015, in the United States District Court for the Southern District of New York, a jury convicted former New York Senate Majority Leader, Dean Skelos, and his son, Adam Skelos, of Hobbs Act conspiracy, Hobbs Act extortion, honest services wire fraud conspiracy, and federal program bribery. While their appeals were pending in 2016, the Supreme Court decided McDonnell v. United States, which ratcheted up the standard for proving corruption by a public official. The Second Circuit has now concluded, by summary order, that the convictions cannot stand because, under McDonnell, the jury instructions were erroneous. The court did, however, find that a reasonable fact-finder could convict the defendants under the new McDonnell standard, and that the case could therefore be retried.

To read the full opinion, please visit:

Extended Summary: The Second Circuit focused on three of the arguments Dean and Adam Skelos raised on appeal: (1) the jury instructions were erroneous; (2) the evidence at trial was insufficient; and (3) the district court erred in allowing two witnesses to testify.

The Second Circuit addressed the jury instructions issue first. The district court's jury instructions had defined the term "official act" in the crimes charged as "any act taken under color of official authority." After the trial, the Supreme Court held in McDonnell v. United States that there are "significant constitutional concerns" when jury instructions define "official act" to cover "acts that a public official customarily performs." The Supreme Court noted that when jury instruction define "official act" this broadly, an "official act" could encompass "nearly anything a public official does." Accordingly, the Second Circuit held that the district court's jury instructions had been erroneous. Further, the court found that it could not conclude the jury instruction error was harmless beyond a reasonable doubt. The court specifically focused on the risk that the jury could have concluded that evidence of certain meetings Dean Skelos attended fulfilled the official act requirement, rather than simply provided circumstantial evidence of a quid pro quo for favorable votes on legislation.

As to the sufficiency of the evidence at trial, the Court reviewed the record de novo, and concluded the defendants' sufficiency challenge failed on the merits. The Court held that there was more than sufficient evidence for a rational jury to find the material elements of the crime beyond a reasonable doubt under the new McDonnell standard. For example, there was evidence at trial that Senator Skelos had traded his vote in favor of legislation that would benefit certain entities, in exchange for their providing compensation to his son Adam.

Further, as to the district court's decision to permit Lisa Reid (the Executive Director of New York's Legislative Ethics Commission) and Senator Tony Avella to testify, the Court held that although the district court did not abuse its discretion in permitting Reid to testify, the McDonnell decision suggested that it was an abuse of discretion to admit Senator Avella's testimony. Nevertheless, the court did not have to determine whether Senator Avella's testimony alone required vacatur and remand, because the court had already determined the jury instructions error required doing so.

Panel: Circuit Judges Winter and Raggi; District Judge Hellerstein, sitting by designation

Date of Issued Opinion: 09/26/2017

Docket Number: No. 16-1618-cr; No. 16-1697-cr

Vacated and Remanded

Case Alert Author:
Rebecca King

Counsel: Alexandra A.E. Shapiro (Daniel J. O'Neill, Fabien Thayamballi, on the brief), Shapiro Arato LLP for Dean Skelos; Robert Alan Culp, Law Office of Robert A. Culp for Adam Skelos; Thomas McKay, Assistant United States Attorney (Tatiana Martins, Margaret Garnett, Assistant United States Attorneys, on the brief) for Joon H. Kim, Acting United States Attorney for the Southern District of New York.

Circuit: Second Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 09/26/2017 09:41 PM     2nd Circuit  

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