United States v. Silver

(emphasis added) (citation omitted).

Although Ganim rejected the proposition “that a specific act [must] be identified

and directly linked to a benefit at the time the benefit is received,”

id. at 145

McDonnell clarifies that, to be convicted of bribery under the “as the opportunities

arise” theory, the public official must, at minimum, promise to influence a

23 “focused and concrete” “question or matter” that “involv[es] a formal exercise of

governmental power.” See McDonnell, 136 S. Ct. at 2369–70.7

1. The “As The Opportunities Arise” Theory of Bribery

In Ganim we reviewed the extortion under color of right and honest services

fraud convictions of former Bridgeport, Connecticut mayor Joseph Ganim.

Several companies and individuals had paid bribes to Ganim’s aides in exchange

for Ganim undertaking official acts on pending issues. The aides then provided

Ganim with money and other benefits over a period of four years. Because many

of the bribery schemes overlapped, and because Ganim received the payments

from his aides rather than directly from the bribe payors, the individual benefits

that Ganim received were not always tied directly to a specific official act. This

lack of linkage, Ganim argued, defeated the Government’s case.

7The terms “as the opportunities arise,” “stream of benefits,” and “retainer” have been used interchangeably by other courts. See, e.g., United States v. Percoco, No. 16‐CR‐776 (VEC),

2019 WL 493962

, at *6 (S.D.N.Y. Feb. 8, 2019); United States v. Mangano, No. 16‐CR‐ 540 (JMA),

2018 WL 851860

, at *2 (E.D.N.Y. Feb. 9, 2018). Our holding is limited to the “as the opportunities arise” theory as set forth in Ganim—i.e., a promise to “exercise particular kinds of influence . . . as specific opportunities ar[i]se,” 510 F.3d at 144–45. We express no opinion and need not reach the issue of whether the acceptance of a bribe with a promise to perform an official act in the future upon designation of the official act by the bribe payor at that later date (in essence a retainer) would run afoul of the honest services fraud statutes or the Hobbs Act. That case is simply not before us. 24 We disagreed and instead endorsed jury instructions requiring that Ganim

accepted payments knowing that they were “made in exchange for a specific

exercise of [his] official powers” and that “he was expected as a result of the

payment[s] to exercise particular kinds of influence, that is, on behalf of the payor,

as specific opportunities arose.” Ganim,

(emphasis added). We

explicitly rejected Ganim’s argument that bribery prosecutions are governed by

the same “nexus” requirement set forth in United States v. Sun–Diamond Growers of

California, in which the Supreme Court held that the illegal‐gratuities statute,

18 U.S.C. § 201

(c)(1)(A), requires proof of “a link between a thing of value conferred

upon a public official and a specific ‘official act’ for or because of which it was

given.”

526 U.S. 398, 414

(1999).

Such a link is “not needed in the extortion or bribery contexts,” we

explained, because “it is the requirement of an intent to perform an act in exchange

for a benefit—i.e., the quid pro quo agreement [or promise]—that distinguishes

those crimes from both legal and illegal gratuities.” Ganim, 510 F.3d at 146–47. In

other words, bribery’s quid pro quo requirement serves the same function as does

the nexus requirement for illegal gratuities: avoiding the “peculiar result[]” that,

without requiring a quid pro quo, federal law might unconstitutionally criminalize

25 “any effort to buy favor or generalized goodwill from an official who either has

been, is, or may at some unknown, unspecified later time, be in a position to act

favorably to the giver’s interests.” Sun–Diamond, 526 U.S. at 405–06 (first emphasis

added). The only difference is that, whereas the § 201(c)(1)(A) nexus requires “a

link between a thing of value . . . and a specific ‘official act,’” id. at 414—i.e., this

for that—the extortion and bribery quid pro quo does not require a “link [between]

each specific benefit [and] a single official act,” Ganim,

(emphasis

added). It may, alternatively, be proven through evidence of “a scheme involving

payments at regular intervals in exchange for specific official[] acts as the

opportunities to commit those acts arise”—i.e., “this for these or these for these,

not just this for that.”

at 147–48 (internal quotation marks omitted).8

8 See also United States v. Kemp,

500 F.3d 257

, 267–70, 281 (3d Cir. 2007) (approving of charge in honest services fraud prosecution explaining that, where multiple benefits are given by a person to a public official, “it need not be shown that any specific benefit was given in exchange for a specific official act,” so long as payments were made “in implicit exchange for one or more official acts” (emphasis added)); United States v. Jennings,

160 F.3d 1006, 1014

(4th Cir. 1998) (“Bribery requires the intent to effect an exchange of money (or gifts) for specific official action (or inaction), but each payment need not be correlated with a specific official act. Rather, it is sufficient to show that the payor intended for each payment to induce the official to adopt a specific course of action. . . . Thus, all that must be shown is that payments were made with the intent of securing a specific type of official action or favor in return.” (emphases added and citation omitted)). 26 Ganim was thus concerned with whether bribery is limited to one‐for‐one

exchanges. Although we held that it can also “be accomplished through an

ongoing course of conduct,” id. at 149, we were clear that in such cases the public

official must still understand the exchange to be one of payment for “specific

official[] acts as the opportunities to commit those acts arise,” id. at 147 (emphases

added).

2. McDonnell v. United States

In McDonnell, the Supreme Court reviewed a challenge to jury instructions

on extortion under color of right and honest services fraud. At issue was “whether

arranging a meeting, contacting another official, or hosting an event—without

more—can be a[n official act].” 136 S. Ct. at 2368. Like the parties here—but unlike

in Ganim,

510 F.3d at 142

n.4—the parties in McDonnell agreed to define “official

act” by reference to the federal bribery statute, 18 U.S.C § 201(a)(3) (“[T]he term

‘official act’ means any decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be pending, or which may by

law be brought before any public official, in such official’s official capacity, or in

such official’s place of trust or profit.”). See McDonnell,

136 S. Ct. at 2365

. The

district court defined “official act” accordingly, but further instructed the jury that

27 official acts “encompassed acts that a public official customarily performs,

including acts in furtherance of longer‐term goals or in a series of steps to exercise

influence or achieve an end.”

Id. at 2366

(internal quotation marks omitted).

The Supreme Court, citing concerns that the “standardless sweep” of this

definition could “subject [public officials] to prosecution, without fair notice, for

the most prosaic interactions,” found these instructions to be inadequate.

Id. at 2373

(citation omitted). It explained that, in order to “avoid[] this ‘vagueness

shoal,’”

id.

(quoting Skilling,

561 U.S. at 368

), a narrower definition of “official act”

was necessary.

First, the Court observed that a “‘cause,’ ‘suit,’ ‘proceeding,’ [or]

‘controversy’ . . . connote[s] a formal exercise of governmental power, such as a

lawsuit, hearing, or administrative determination.” Id. at 2368, 2374 (quoting

18 U.S.C. § 201

(a)(3)). Second, because “a word is known by the company it keeps,”

id.

(citation omitted), the Court held that a jury must find that the “question” or

“matter” before the official was “something specific and focused that is ‘pending’

or ‘may by law be brought before [him],’”

id.

at 2374 (quoting

18 U.S.C. § 201

(a)(3)).

Third, the Court interpreted the terms “‘[p]ending’ and ‘may by law be brought’

[to] suggest something that is relatively circumscribed—the kind of thing that can

28 be put on an agenda, tracked for progress, and then checked off as complete.”

Id.

at 2369 (quoting

18 U.S.C. § 201

(a)(3)). Finally, the Court noted that a jury must

find that the official “made a decision or took an action—or agreed do so—on the

identified ‘question, matter, cause, suit, proceeding or controversy.’”

Id. at 2374

Contrary to the Government’s assertions, the Court’s vacatur of

McDonnell’s conviction was not limited to concerns that the jury may have

believed a meeting, on its own, qualifies as a “decision or action.”

Id. at 2375

. The

Court was also concerned that the jury may have convicted the defendant

“without finding that he agreed [(or promised)] to make a decision or take an

action on a properly defined ‘question, matter, cause, suit, proceeding or controversy.’”

Id. at 2375

(emphasis added). In fact, the Court discussed specific examples of both

properly—and improperly—defined “focused and concrete . . . formal exercise[s]

of governmental power.”

Id. at 2370

. The examples were limited to “questions or

matters” because, as here, there was no allegation that McDonnell promised to

influence a “cause, suit, proceeding or controversy”—like “a lawsuit, hearing, or

administrative determination.” See

id.

at 2368–70.

The Court agreed with the Fourth Circuit that the following questions or

matters were sufficiently “focused and concrete”:

29 (1) whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc; (2) whether the state‐created Tobacco Indemnification and Community Revitalization Commission would allocate grant money for the study of anatabine; and (3) whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug.

Id. at 2370

(internal quotation marks and citation omitted). In contrast, general

concerns about “‘Virginia business and economic development,’ or—as it was

often put to the jury—’Bob’s for Jobs,’” fell below that standard.

Id. at 2369

(citation omitted)). Indeed, the Court noted that “[a]t trial, several of Governor

McDonnell’s subordinates testified that he asked them to attend a meeting, not

that he expected them to do anything other than that.”

Id. at 2374

. The Court

explained that “[i]f that testimony reflects what Governor McDonnell agreed [(or

promised)] to do at the time he accepted the loans and gifts,” then he did not, as

required, “agree [(or promise)] to make a decision or take an action on any of the

three questions or matters described [above].”

Id.

(emphases added); see also

id.

2374–75 (requiring that the jury find the defendant “agreed [(promised)] to exert

pressure . . . to initiate the research studies or add Anatabloc to the state health

plan”).

30 3. McDonnell Reiterates that Bribery Requires the Official to Promise to Act on a Specific, Concrete, or Focused Question, Matter, Cause, Suit, Proceeding or Controversy.

Two observations drawn from McDonnell’s language inform our analysis.

First, McDonnell re‐emphasizes that the relevant point in time in a quid pro quo

bribery scheme is the moment at which the public official accepts the payment. See

id. at 2374

; see also Evans,

504 U.S. at 268

(“[T]he offense is completed at the time when

the public official receives a payment in return for his agreement to perform

specific official acts . . . .”). The question that arises here, however, is: what must

the official promise at the time the bribery offense is committed?

That leads to our second observation. McDonnell suggests that, at the time

the bribe is made, the promised official act must relate to a “properly defined”

“question, matter, cause, suit, proceeding or controversy.” See McDonnell,

136 S. Ct. at 2374

. This follows from the fact that there are two requirements for an

official act: “First, the Government must identify a ‘question, matter, cause, suit,

proceeding or controversy,’” and “[s]econd, the Government must prove that the

public official made a decision or took an action ‘on’ that question, matter, cause,

suit, proceeding, or controversy, or agreed to do so.”

Id. at 2368

(emphasis added).

Thus, for an official to promise to perform an official act—and thereby engage in

31 the prohibited quid pro quo—the official must promise to act on an identified

“question, matter, cause, suit proceeding, or controversy” at the time of the

promise. See

id.

This point is illustrated in the context of this case by considering the

following example: An official accepts a bribe, stating to the payor that she will

“take official acts as the opportunities arise.” In other words, the official has

promised to take—as the opportunities arise—“any decision or action on any

question, matter, cause, suit, proceeding or controversy [that] may at any time be

pending,”

18 U.S.C. § 201

(a)(3) (emphasis added), a promise so vague as to be

meaningless. The official has not agreed to take official action on a properly

defined—i.e., focused, concrete and specific—question or matter. The official has

failed to offer a quo. Absent any additional specificity, criminal liability could

attach to any later action the official takes so long as the official is exercising some

ability granted to him or her by law, regardless of the fact that the official

essentially promised nothing in return for the payment.

McDonnell thus stands for the proposition that bribery requires that an

official accept a payment, knowing that he is expected to use his office to influence

a “focused,” “concrete,” and “specific” question or matter that “may be

32 understood to refer to a formal exercise of governmental power.”

Id.

at 2369–70,

2372. The question or matter need only be “focused,” “concrete,” or “specific”

enough to satisfy the quid pro quo requirement—the official need only promise to

do something about a question or matter that “may be understood to refer to a

formal exercise of governmental power.”

Id. at 2369

. For example, questions or

matters such as whether state universities will research a particular drug, or

whether the state will provide funding to research a particular disease are

sufficiently concrete and focused to satisfy McDonnell. See

id.

at 2369–70.

Conversely, for example, a promise to perform some act to create jobs or lower

taxes, or to “benefit the payor,” without more, cannot be understood to refer to a

“formal exercise of governmental power that is similar in nature to a ‘cause, suit,

proceeding or controversy.’”

Id. at 2369

. More pointedly, such a promise is so

lacking in definition or specificity that it amounts to no promise at all. And, absent

a promise, there is no quid pro quo.

This observation does not signal a change in the law. Nor do we suspect it

will affect the prosecution of bribery in most cases because neither the facts of

McDonnell, nor the Court’s opinion, suggest that either the payor or the official

must precisely define the relevant matter or question upon which the official is

33 expected to exercise his official power. 9 Circumstantial evidence demonstrating

an understanding between the payor and the official will often be sufficient for the

Government to identify a properly focused and concrete question or matter.10 The

crux of our inquiry is whether the offered quo has enough definition and focus to

be properly understood as promising, in return for some quid, the formal exercise

of governmental power.

9 For example, the Supreme Court identified three properly focused and concrete questions or matters without any explicit agreement between Virginia businessman Jonnie Williams, the alleged bribe payor, and Governor McDonnell. See McDonnell,

136 S. Ct. at 2370

; see, e.g.,

id. at 2362

(“Williams told Governor McDonnell that he ‘needed his help’ moving forward on the research studies at Virginia’s public universities . . . .”); see also, e.g.,

id.

(noting that after Williams took Mrs. McDonnell on a “shopping trip,” “[t]he McDonnells later had Williams over for dinner at the Governor’s Mansion, where they discussed research studies on Anatabloc”);

id. at 2363

(“Three days after the meeting between Williams and Mrs. McDonnell, Governor McDonnell directed his assistant to forward the article on Star Scientific to [Virginia’s Secretary of Health and Human Resources].”). It was clear, based on a pattern of conversations and gift‐giving that Williams sought McDonnell’s influence on three distinct questions that properly involved the formal exercise of governmental power. 10Indeed, bribery is rarely conducted in explicit terms; instead, the language of bribery is one of implication and innuendo. Past experience shows that the Government will be able to introduce, in the appropriate circumstances, circumstantial and other evidence that the payor and official understood the quid pro quo to center on an exchange of a thing of value for official acts related to some sufficiently defined and concrete question or matter involving the formal exercise of governmental power. For example, in some circumstances, a wink and a nod, an exchange of monies, and a subsequent vote on a bill likely will be sufficient. See, e.g., Bruno,

(“[A] jury can in such cases infer guilt from evidence of benefits received and subsequent favorable treatment, as well as from behavior indicating consciousness of guilt.”). 34 Furthermore, McDonnell’s interpretation of the “official act” requirement

fits comfortably with—and provides a narrowing gloss on—Ganim’s “as the

opportunities arise” theory, which similarly requires an anticipated exchange of

payment for “particular kinds of influence,” Ganim,

(emphasis

added) (citation omitted). We therefore disagree with Silver that the “as the

opportunities arise” theory of bribery does not survive McDonnell. But we agree

that, if the district court’s jury instructions failed to convey that, as relevant here,

a particular question or matter must be identified at the time the official makes a

promise or accepts a payment, they were in error.

Otherwise, we risk “subject[ing] [public officials] to prosecution, without

fair notice, for the most prosaic interactions.” McDonnell,

136 S. Ct. at 2373

Indeed, without a requirement that an official must promise to influence a

particular question or matter, any official who accepts a thing of value and then

later acts to the benefit of the donor, in any manner, could be vulnerable to criminal

prosecution. See Bruno,

(explaining that a jury may “infer guilt

from evidence of benefits received and subsequent favorable treatment” (quoting

United States v. Friedman,

854 F.2d 535, 554

(2d Cir. 1988))); see also McDonnell,

136 S. Ct. at 2372

(“Officials might wonder whether they could respond to even the

35 most commonplace requests for assistance, and citizens with legitimate concerns

might shrink from participating in democratic discourse.”).11 As the Supreme

Court has warned, “a statute in this field that can linguistically be interpreted to

be either a meat axe or a scalpel should reasonably be taken to be the latter.” Sun–

Diamond,

526 U.S. at 412

C. The Jury Instructions in Context

Having determined that the “as the opportunities arise” theory of bribery

survives McDonnell, but that the quid pro quo requirement demands more than a

mere promise to perform some or any official action to “benefit the payor,” we

turn to the jury instructions provided in this case.

The district court provided the following instruction to the jury on honest

services fraud:

11Accord United States v. Kincaid‐Chauncey,

556 F.3d 923

, 942–43 (9th Cir. 2009) (“The political system functions because lobbyists and others are able to persuade elected officials of the wisdom or error of policy proposals. . . . [S]uch endeavors are protected by the right to petition the Government for a redress of grievances guaranteed by the First Amendment of the United States Constitution. Attempts to persuade or mere favoritism, evidenced by a public official’s willingness to take a lobbyistʹs telephone call or give a lobbyist greater access to his appointment schedule, are not sufficient to demonstrate either the lobbyist’s or the public official’s intent to deprive the public of honest services.” (original alterations, citation, and internal quotation marks omitted) (quoting United States v. Sawyer,

85 F.3d 713

, 731 n.15 (1st Cir. 1996))). 36 The government must prove that a bribe was sought or received by Mr. Silver, directly or indirectly, in exchange for the promise or performance of official action. The government does not have to prove that there was an . . . agreement . . . that any particular action would be taken in exchange for the bribe. . . .

[It does have to] prove that Mr. Silver . . . understood that, as a result of the bribe, he was expected to exercise official influence or take official action for the benefit of the payor and, at the time the bribe was accepted, intended to do so as specific opportunities arose. . . .

An “official act” or “official action” is a decision or action on a specific matter that may be pending or may by law be brought before a public official. . . . The decision or action must be made on a question or matter that involves a formal exercise of governmental power. That means that the question or matter must be specific, focused, and concrete—for example, the kind of thing that could be put on an agenda and then checked off as complete. It must be something that may by law be brought before a public official, or may at some time be pending before a public official.

Special App. 30–31 (emphases added). The court instructed the jury on extortion

under color of right as follows:

To satisfy [the quid pro quo] element, the government must prove . . . that Mr. Silver obtained property to which he was not entitled by his public office, knowing that it was given in return for official acts as the opportunity arose . . . . If you find that Mr. Silver understood that the property at issue was given solely to cultivate goodwill or to nurture a relationship with the person or entity who gave the property and not as an exchange for any official action, then this element has not been proven . . . . On the other hand, if you find that Mr. Silver accepted the property intending, at least in part, to take official action in exchange for those payments as the opportunity arose, then [the quid quo pro] element has been satisfied.

37 Special App. 32–33 (emphases added).

The instructions required that, at the time Silver entered into the quid pro

quo, he believed that the payor expected him to exchange payment for “official

action [to] the benefit of the payor . . . as specific opportunities arose,” id. at 30, or

“official acts as the opportunity arose,” id. at 33. Although the district court further

instructed the jury that it must find that Silver “made [a decision] on a question or

matter that . . . [was] specific, focused, and concrete,” id. at 31 (emphasis added),

it did not require that the specific matter—e.g., the receipt of grant funding

(Mesothelioma Scheme) or extending specific tax programs (Real Estate

Scheme)—be identified, or even understood by Silver, at the time he accepted the

bribe.

Analyzing the district court’s instructions in the context of the Real Estate

and Mesothelioma Schemes demonstrates both that Silver overreads McDonnell

and that the Government relies on an open‐ended interpretation of Ganim. In our

view, the district court’s instructions were erroneous. They only required the jury

to find that Silver understood, at the time that he accepted any quid, that he was

expected to exercise official influence or take official action for the benefit of the

payor. As we explain below, an illegal quid pro quo under the “as the opportunities

38 arise” theory of bribery requires more than what the Government presented in this

case: an open‐ended promise to perform official actions “for the benefit of the

payor.”

1. Mesothelioma Scheme (Counts 1s, 2s, and 5s)

The Government argues that Silver took “at least five official actions” in

connection with the Mesothelioma Scheme, which allegedly involved the

exchange of client referrals for acts benefitting a Manhattan physician, Dr. Robert

Taub. Special App. 44. The acts included securing two grants to fund Taub’s

research; directing funding to a nonprofit for which Taub’s wife served as a board

member; securing an Assembly resolution honoring Taub; and offering to secure

permits needed for a charity race in Silver’s Lower Manhattan Assembly district.12

a. Background

In the fall of 2002, while he was Speaker of the Assembly, Silver became “of

counsel” to the law firm Weitz & Luxenberg (“W&L”), which maintained an active

personal injury practice. Lawsuits for mesothelioma, a rare form of cancer caused

12The Government also presented evidence that Silver helped Taub’s children secure employment. However, the Government did not argue that any of this assistance included official acts, only that it provided evidence of “the corrupt relationship between Sheldon Silver and Dr. Taub” and of Silver’s “corrupt intent.” Special App. at 50. 39 by exposure to asbestos, were particularly lucrative for W&L. Silver received

referral fees—a set percentage of the fees earned by W&L—for any case he brought

into the firm.

Taub, an acquaintance of Silver, worked as a physician and researcher at

Columbia‐Presbyterian Hospital where he specialized in mesothelioma. In the fall

of 2003, Taub met Silver at an event and “specifically” asked him to encourage

W&L to donate money to mesothelioma research. J.A. 445. Silver declined.

However, “[a] few days” later, a mutual friend—Daniel Chill—relayed to

Taub that “Shelly [Silver] want[ed] cases.” Id. at 446. Taub then began referring

patients to Silver for legal representation. As Taub put it, he understood that “if

[he] referred patients to [W&L] . . ., [Silver] would be incentivized to be an

advocate for mesothelioma research and to help mesothelioma patients.” Id. at

489.

Within “seven or eight months” of when Taub began sending referrals,

Silver—again through Chill—directed Taub to write Silver a letter seeking state

funding for his mesothelioma research. Id. at 447. Chill assisted Taub in drafting

the letter, which requested $250,000. In March 2005, Silver received from W&L his

first check for fees from Taub’s referrals, totaling more than $175,000.

40 In July 2005, Taub received a $250,000 grant from the New York State

Department of Health under the 2002 Health Care Reform Act (“HCRA”). The

HCRA Assembly Pool was a discretionary fund containing millions of dollars in

public money that Silver, as Speaker, could designate to grants for health care

purposes. Silver “was the ultimate decision‐maker” regarding HCRA

disbursements, which were not subject to public disclosure from 2000 to 2006. Id.

at 528.

Taub continued to refer patients to W&L after he received the first grant. In

October 2006, Taub sent Silver a letter requesting a second $250,000 HCRA grant.

He received that funding in November 2006.

In 2007, state law changed to require public disclosure of future HCRA

grants, as well as disclosure to the State Attorney General of any potential conflicts

of interest between legislators and recipients of legislative grants. That same year,

Silver informed Taub in person that he could not fund his third HCRA grant

request.

Taub nevertheless continued sending mesothelioma client leads to W&L

until 2010, at which time he began sending fewer leads to W&L because he had

started sending leads to another law firm. In response, on May 25, 2010, Silver

41 visited Taub in person to complain that he was receiving fewer referrals. Taub

subsequently renewed his practice of referring cases to W&L.13 As he explained

in a contemporaneous email, “I will keep giving cases to Shelly because I may need

him in the future—he is the most powerful man in New York State.” Id. at 1775.

Silver did, in fact, continue to help Taub in other ways. First, in 2008 he

directed a $25,000 state grant to the Shalom Task Force, a domestic violence non‐

profit for which Taub’s wife served as a board member. Second, in May 2011,

Silver sponsored an Assembly resolution commending Taub. He presented the

resolution to Taub at a public event. And, third, in the fall of 2011, Silver promised

Taub that his office could help “navigate” the process of securing permits needed

to organize a proposed “Miles for Meso” charity race in Silver’s Assembly district.

Id. at 1774. The promise never came to fruition, as the event was abandoned

shortly thereafter.

13There is some ambiguity in the record as to whether, after the 2010 conversation between Taub and Silver, Taub continued to send Silver referrals at the same volume, or whether Taub increased the volume of referrals to Silver. 42 Taub provided mesothelioma leads to W&L through at least 2013. Over the

course of ten years, Silver received roughly $3 million in fees for cases that Taub

referred to W&L.

b. HCRA Grants

The HCRA grants are the most clearly‐defined aspect of the Mesothelioma

Scheme. As detailed above, the facts adduced at trial provide overwhelming

evidence that Silver knowingly accepted referrals in exchange for action on a

“focused and concrete” question or matter: whether the Assembly would allocate

grant money to Taub for the study of mesothelioma. From the moment Taub

approached Silver about research funding, Silver knew that he had power over

something of great value to Taub. He then chose to abuse that power for personal

gain. The HCRA component of the Mesothelioma Scheme is thus a quintessential

example of a public official extorting a constituent under color of right and

committing honest services fraud, and the district court’s charge adequately

informed the jury of this aspect of the scheme. While not naming the specific

matter in the charge, there could be but one conclusion: that the focus of the

promise was on the particular subject matter of state funding for mesothelioma

research.

43 However, for the reasons discussed below in Part IV.A, the HCRA grant

scheme occurred outside of the statute of limitations, so we must determine

whether the jury could have properly considered evidence other than the HCRA

grants.

c. Non‐Profit Funding, Charity Race Permits, and the Assembly Resolution

The Government argues that, even without the HCRA grants, it presented

evidence beyond a reasonable doubt that Silver knowingly exchanged referrals for

influence on a particular question or matter. Silver’s corrupt promise, in the

Government’s view, is particularized by any official act that benefitted Taub. The

Government points to the hodgepodge of other allegedly official acts Silver

undertook, including securing funding for Taub’s wife’s charity, formally

recognizing Taub in an Assembly resolution, and offering to assist in securing

permits for Taub’s charity race. The district court’s charge is in accord with that

view. However, as we explain below, like the HCRA grants, Silver’s securing of

funding for Taub’s wife’s charity is also outside of the limitations period. Thus,

Silver’s conviction rests upon whether Ganim, as modified by McDonnell, requires

only that the official understood he was expected to take official action “for the

benefit of the payor,” as the opportunities arose. 44 2. Real Estate Scheme (Counts 3s, 4s, and 6s)

The Real Estate Scheme presents a significantly different factual scenario

that more closely resembles classic bribery‐based crimes. The Government argues

that Silver committed at least two official acts in connection with the Real Estate

Scheme, which involved two major New York real estate developers: Glenwood

Management and the Witkoff Group (collectively, the “Developers”). First, the

Government argues that Silver helped pass legislation beneficial to the

Developers, specifically provisions of the Rent Act of 2011 concerning certain tax

abatement and rent stabilization programs. Second, the Government asserts that

Silver helped Glenwood secure certain tax‐exempt financing from the Public

Authority Control Board (“PACB”), of which he was a voting member.14

14Silver’s argument that the PACB approvals were “perfunctory” or “rubber‐stamp[s]” and that his vote on the Rent Act of 2011 was “inevitable” are unavailing. Appellant Br. 51–52. It is no defense that an official would have taken certain actions regardless of any alleged bribe. See, e.g., United States v. Rosen,

716 F.3d 691

, 701–02 (2d Cir. 2013) (“Payments to State legislators may constitute bribes even if the legislator’s resulting actions are otherwise ‘routine’—such as voting in a certain manner . . . . Moreover, the corrupt intent that is central to an illegal quid pro quo exchange persists even though the State legislator’s acts also benefit constituents other than the defendant.”); see also United States v. Alfisi,

308 F.3d 144, 151

(2d Cir. 2002) (“[T]here is no lack of sound legislative purpose in defining bribery to include payments in exchange for an act to which the payor is legally entitled.”). 45 Similar to the Mesothelioma Scheme, the Government again alleges that

Silver enriched himself through referral fees from a law firm. In the Real Estate

Scheme, however, the firm was Goldberg & Iryami (“G&I”), headed by Jay

Goldberg, a former staffer and friend of Silver. Goldberg specialized in tax

certiorari work, which involves challenges to property valuations used in tax

assessments. According to the Government, Silver accepted tax certiorari referrals

in exchange for influencing two matters important to the Developers: (i) legislation

relating to certain tax abatement and rent stabilization programs, and (ii) PACB

financing approvals.

The Glenwood referrals began in 2002, when Goldberg asked a Glenwood

lobbyist to send him some of Glenwood’s tax certiorari work. Although the

lobbyist testified that both he and the leadership of Glenwood were unaware until

December 2011 that Silver received referral fees from G&I, he also testified that he

“thought [the fact that Silver and Goldberg were friends] would be important to

[Glenwood] to know” when considering whether to retain G&I. J.A. 728.

The Witkoff referrals began in 2004 when Silver “told [Witkoff] that he had

a friend whose name was Jay Goldberg who was in the tax certiorari legal business.

He was struggling and was wondering if [Witkoff] might consider giving some of

46 [his] tax certiorari legal work to Mr. Goldberg’s law firm.” Id. at 798. Although

Silver did not mention that he received referral fees from G&I, Witkoff testified

that he subsequently sent work to G&I because he “didn’t want to do anything

that could possibly alienate Mr. Silver. . . . [Silver] was a powerful man . . . with

regard to [Witkoff’s] industry, [his] business and how [he] exist[s] in [his] business

in the city.” Id. As Witkoff explained, he “might have occasion to” discuss matters

with Silver in the future, though he “didn’t have [occasion to do so] at that

moment.” Id.

Silver’s first alleged quid pro quo with the Developers involved an exchange

of referrals from Glenwood for influence on provisions of the Rent Act of 2011. As

Speaker, Silver had substantial control over which legislation went to the

Assembly floor for a vote. Glenwood’s lobbyist testified that provisions of the

Rent Act of 2011 related to tax abatement and rent stabilization were “[v]ery”

important to Glenwood, and that “without continuation of [the tax abatement

program, Glenwood] couldn’t build any more buildings.” Id. at 725; see also id. at

796 (Witkoff testifying that “[i]f [Witkoff] didn’t have [the tax abatement], it would

have been a tougher exercise to finance [certain prior] project[s]”). Glenwood’s

lobbyist also testified that passage of both provisions was “[e]xtremely”

47 controversial, id. at 725, though a third‐party lobbyist testified that there was “[n]ot

much” controversy as to “the continuation of [the programs],” id. at 764.

In June 2011, Silver met with Glenwood’s lobbyists in his Assembly office.

The lobbyists proposed that certain rent stabilization provisions in the Rent Act of

2011 be made more tenant‐friendly to ensure passage of the larger “full bill” that

included renewal of the specific tax abatement program important to Glenwood.

See id. at 726–27. Several weeks later, the bill passed to the “satisf[action]” of

Glenwood. Id. at 727.

The second alleged quid pro quo involved an exchange of referrals from

Glenwood for Silver’s influence as a voting member of the PACB. Because PACB

financing applications require unanimous approval, Silver had the power to

unilaterally deny them. Silver voted in favor of all eight of the Glenwood PACB

requests received between 2000 and 2012. Four of these approvals—November

2010, October 2011, October 2012, and August 2014—occurred within the

limitations period.

In proving the Real Estate Scheme, the Government highlighted a “side

letter” retainer agreement signed by Goldberg, Glenwood, and Silver in December

2011. See id. at 898. In late 2011, G&I prepared new retainer agreements “notifying

48 [Glenwood] formally that Mr. Silver was participating,” i.e., receiving referral fees.

Id. at 897. Although Glenwood was unhappy that Silver received referral fees, it

was also concerned about how Silver would “[r]eact towards Glenwood” if the

fees stopped because Silver was “extremely influential and powerful, not

somebody you would want to make not like you.” Id. at 823. Subsequently, a

Glenwood executive called G&I’s office and “said they decided that they would

rather have a standard retainer without the mention of Mr. Silver’s name and that

there would be a side agreement wherein Mr. Silver, Mr. Goldberg, [and the

Glenwood executive] would sign, everyone acknowledging that Mr. Silver was

getting a portion of the fee.” Id. at 897. In January 2012, Silver signed this “side

letter.”

Days after Silver and Glenwood inked the side letter, Glenwood sent six

new buildings to Goldberg for tax certiorari representation—benefitting Silver.

Silver also voted to approve hundreds of millions of dollars in PACB financing

benefitting Glenwood two months before and ten months after signing the letter.

Additionally, had Silver still been in the Assembly in 2015, he would have again

had the opportunity to vote on the same valuable tax abatement and rent

stabilization programs, which must be renewed every four years. Although Silver

49 resigned from the Assembly following his indictment in February 2015, Glenwood

testified that, had Silver still been Speaker, it would have lobbied him on those

programs. Witkoff did not learn that Silver received referral fees until June 2014.

Despite misgivings about Silver’s involvement, Witkoff continued using G&I.

In total, over a period of about 18 years, Silver received approximately

$835,000 in fees from G&I for referring the Developers’ tax certiorari work to the

firm.

3. Silver’s Conviction Depends on the Proper Understanding of Ganim’s Requirement that the Official Agree to Exercise “Particular Kinds of Influence.”

As discussed, the Mesothelioma Scheme changed after 2007. After Taub

stopped directing referrals to W&L through Silver, and after Silver visited Taub’s

office seeking additional referrals, the Government argued that the character of

the quid pro quo changed. The jury instructions as written encompass what the

Government believed the character of the quid pro quo had become—that after

Silver sought additional referrals, he promised to, or understood that he was

expected to, perform official acts, for Taub’s benefit, as the opportunities to do so

arose.

50 At trial, and before this Court, the Government argued that Silver sought

“other ways to keep Dr. Taub happy”—such as navigating the race permitting

process or passing the Assembly resolution—to continue receiving referrals. See

Special App. 41. However, after McDonnell, navigating a permitting process is not

an official act, see McDonnell,

136 S. Ct. at 2370

, and Silver’s provision of funding

to Taub’s wife’s charity took place outside of the limitations period. Thus, because

the HCRA grants are time‐barred, the only official action within the limitations

period is the Assembly resolution honoring Taub.

In contrast, the quid pro quo that allegedly forms the basis of the Real Estate

Scheme is more focused. The Government presented evidence tracking Silver’s

signing of the “side letter” retainer agreement with PACB approvals, and

Glenwood and Witkoff’s retention of G&I with Silver’s actions related to the Rent

Act of 2011. The Government also presented evidence suggesting the relationship

between Silver and the Developers continued due to the Developers’ fear that

Silver would act adversely to their interests. Furthermore, there is evidence

suggesting that Silver’s relationship with Glenwood and its lobbyists centered

around Silver’s approval of specific favorable provisions contained in real estate

legislation. And circumstantial evidence of the timing of (in particular)

51 Glenwood’s retention of, and provision of business to, G&I tracks neatly with

Silver’s approval of real estate legislation.

While the Government presented no evidence that Taub sought, or Silver

promised to provide, the Assembly resolution as part of the Mesothelioma

Scheme, with respect to the Real Estate Scheme, the Government presented

evidence that links Silver’s official actions with business provided by the

Developers to G&I. The Government’s “for the benefit of” theory occasioned by

the factual differences in the two schemes compels us to confront what is required

under Ganim, in light of McDonnell, when an official promises to exercise

“particular kinds of influence” “as the opportunities arise.” See Ganim,

510 F.3d at 145

D. The “As the Opportunities Arise” Theory of Bribery Requires More Than a Promise to Perform Any Official Act for the Benefit of the Payor.

As discussed above, the jury instructions only required the jury to

determine whether Mr. Silver promised to, or understood that he was expected to,

perform official acts “for the benefit of the payor” as the opportunities to do so

arose. Special App. 30–31. The instruction on extortion under color of right was

even less definite, asking the jury to determine only whether Silver “accepted the

52 property intending, at least in part, to take official action in exchange for those

payments as the opportunity arose.” Special App. 33. Having contrasted the two

schemes, we think it evident that Silver’s conviction under Counts 1s, 2s, and 5s

depends on what precisely is required to demonstrate a promise to exercise

“particular kinds of influence” after McDonnell. See Ganim,

Under the instructions provided by the district court, and according to the

Government’s argument, it is enough that the official promised to perform some

or any official acts, for the benefit of the payor, as the opportunities arose. See, e.g.,

Appellee Br. at 39, 41–42. However, the facts of Ganim demonstrate that the “as

the opportunities arise” theory has always required more than a mere promise to

perform official acts “for the benefit of the payor.”

Specifically, Ganim used two aides, both of whom held side jobs as

consultants, to facilitate various bribery schemes. In each instance, Ganim knew

that the bribe payor sought to influence an identified issue pending before the

City—including specific wastewater treatment contracts, an open municipal

pension brokerage position, condemnation of a specific property, and two

identified property development contracts—by paying consulting fees to the

aides. Ganim, 510 F.3d at 137–40. The aides kept Ganim’s fee shares “to avoid

53 detection” but provided him with money and other benefits “upon his request.”

Id. at 139

Thus, it was clear from the beginning what “particular kinds of influence”

Ganim was expected to exercise, namely official action affecting each of these

identified areas.15

Id. at 149

. This exchange of payments “for a specific exercise of

[Ganim’s] official powers” was enough to sustain Ganim’s conviction, even

though the separate questions of how Ganim would influence those issues (which

15 In United States v. Coyne, the primary Second Circuit case on which Ganim relies to support the “as the opportunities arise” theory, we approved of an instruction requiring that the defendant “know the payment is offered in exchange for a specific requested exercise of his official power . . . .”

4 F.3d 100

, 113–14 (2d Cir. 1993) (emphasis added). In doing so, we rejected the defendant’s argument that the quid pro quo requirement demands an “explicit promise,” explaining that it is instead “sufficient if the public official understands that he or she is expected as a result of the payment to exercise particular kinds of influence—i.e., on behalf of the payor—as specific opportunities arise.”

Id. at 114

. To the extent that “particular kinds of influence—i.e., on behalf of the payor” might, in isolation, be read to require only that the official promise to take some action beneficial to the payor, the precise instructions in Coyne make clear that such a reading is too broad. Rather, the promise must concern a “specific requested exercise of . . . official power”—in Coyne, a specific municipal contract.

at 113–14. Ganim does not loosen this requirement in demanding a “specific exercise of the defendant’s official powers.”

. Indeed, Ganim says as much. See

id. at 145

(“To the extent Ganim objects to the ‘particular kinds of influence’ phraseology in . . . the jury charge, we find no error. Because the preceding paragraph in the charge clearly articulated the ‘payment . . . in return for official acts’ quid pro quo, the phrase ‘kinds of influence,’ which might otherwise be ambiguous, would only be understood to refer to undertaking the official acts that made up Ganim’s part of the bargain.” (second alteration in original)).

54 specific actions he would take), as well as the form the kickbacks would ultimately

take (cash, meals, etc.), remained unspecified.16 See

id. at 144

(emphasis added).

In Ganim, the fact that a specific official act did not need to be linked to a gratuity

(this for that) did not eliminate the necessity of some degree of specificity to the

public official’s promise. The “opportunities” had definition—they were not

open‐ended and subject to whatever the public official thought might please (or

benefit) the bribe payor.

To the extent our sister circuits have used language suggesting the open‐

ended liability advanced by the Government, a close review of the facts in each

case makes clear that they, like Ganim, do not support such a sweeping view of

bribery. For example, in United States v. Kincaid‐Chauncey, the Ninth Circuit

upheld instructions regarding extortion and honest services fraud similar to those

in Ganim—that the public official must have “underst[ood] that he or she [was]

expected as a result of the payment to exercise particular kinds of influence as

specific opportunities ar[o]se.”

556 F.3d at 945

. There, the Government’s evidence

16See also United States v. Whitfield,

590 F.3d 325, 350

(5th Cir. 2009) (“[A] particular, specified act need not be identified at the time of payment to satisfy the quid pro quo requirement, so long as the payor and payee agreed upon a specific type of action to be taken in the future.”). 55 showed that a county commissioner had accepted four separate payments from a

strip club owner who needed certain ordinances, permits, and licenses to operate

two new establishments. On one occasion, the commissioner had lunch with the

owner, received a cash payment later that same day, and a month later voted in

the owner’s business interests. Id. at 928. On another occasion, the commissioner

contacted the owner to request a sum of cash, which she later received along with

subsequent instructions regarding how to vote on a specific piece of legislation.

Id. at 928.

The Ninth Circuit’s observation that “[i]t is sufficient . . . if the evidence

establishes that the government official . . . has received payments or other items

of value with the understanding that when the payor comes calling, the

government official will do whatever is asked” was set in the context of identified

concerns followed by official acts. Id. at 927–28, 943 n.15. As in Ganim, the

commissioner knew she was expected to assist in securing various government

approvals for the owner’s business in exchange for the payments. What she, like

Ganim, did not know was what form that assistance would ultimately take. The

phrase “when the payor comes calling” was thus another way of conveying that

the specific act need not be identified at the time of payment, but may instead be

56 later identified, by the payor, when a specific opportunity arises. The phrase does

not, in light of its factual context, suggest that an official may be held criminally

liable for accepting a payment with the understanding that she will take some

action on any conceivable topic.17 Indeed, such a reading would effectively

eliminate the distinction between lobbying (lawful attempts to “buy favor,” see

Sun–Diamond, 526 U.S. at 405–406) and bribery (unlawful attempts to buy

particular kinds of influence).

But contrary to the Government’s assertions, Ganim neither held, nor do its

facts suggest, that a bribery scheme involving payments made in return for a

promise to “take [some or any] official action” beneficial in any way to the payor

17See also Kemp, 500 F.3d at 267–70 (affirming honest services fraud convictions where defendants made multiple payments to a former Philadelphia treasurer in return for official assistance in securing and/or renewing certain municipal contracts); Jennings, 160 F.3d at 1010–12 (affirming bribery conviction where defendant met with the administrator of a federal agency to discuss two specific housing rehabilitation programs that did not require competitive bidding, made ongoing multiple payments to the administrator, and simultaneously submitted a series of successful requests for contracts under those same two programs); cf. Sawyer,

85 F.3d at 730

(explaining that “a person with continuing and long‐term interests before an official . . . engag[ing] in a pattern of repeated, intentional gratuity offenses in order to coax ongoing favorable official action in derogation of the public’s right to impartial official services” would be “akin to” two honest services fraud cases involving undisclosed self‐dealing—a theory that is distinct from the bribery theory at issue here and that was subsequently deemed unconstitutional in Skilling,

561 U.S. at 409

57 satisfies either offense’s quid pro quo requirement. Nor have we articulated this

view elsewhere.18 At most, Ganim left open the narrow question of what qualifies

as “particular kinds of influence.” But Ganim made clear that the promised

influence, at a minimum, must be of a “particular kind[].” The jury instructions

here, however, required only that Silver promise “to take [some or any] official

action” “for the benefit of the payor.” In light of Ganim and our other precedents,

and especially after McDonnell’s narrowing of the definition of official acts, such

an instruction is insufficient to accurately inform the jury of what is required to

find a quid pro quo.

18See Rosen,

716 F.3d at 700

(“[T]he federal bribery and honest services fraud statutes . . . criminalize schemes involving payments at regular intervals in exchange for specific official acts as the opportunities to commit those acts arise, even if the opportunity to undertake the requested act has not arisen, and even if the payment is not exchanged for a particular act but given with the expectation that the official will exercise particular kinds of influence.” (emphases added) (original alterations, internal quotation marks, and citations omitted)); Bruno,

(“The governmentʹs evidence of the timing of the payments in relation to the actions taken by [the former New York State Senate Majority Leader] could also be accepted by a rational jury in support of the conclusion that [the defendant] understood that the consulting payments were made in return for official action [on a specific and pending government grant].”); United States v. Bahel,

662 F.3d 610, 634

(2d Cir. 2011) (approving of jury instruction requiring that the defendant‐official have “accepted financial benefits . . . in return for [three enumerated] forms of assistance” (emphasis omitted)); Coyne, 4 F.3d at 113–14 (approving of jury instruction requiring that defendant‐official have known the payment was made “in return for official acts,” i.e., “in exchange for a specific requested exercise of his official power” (emphasis added)). 58 Moreover, failure to define the conduct prohibited by extortion under color

of right and honest services fraud would “raise[] significant federalism concerns”

akin to those identified in McDonnell. Id. at 2373. “A State defines itself as a

sovereign through ‘the structure of its government[] and the character of those

who exercise government authority.’ That includes the prerogative to regulate the

permissible scope of interactions between state officials and their constituents.”

Id. (citation omitted) (quoting Gregory v. Ashcroft,

501 U.S. 452, 460

(1991)). New

York State allows elected officials to maintain part‐time employment, including

practicing law.

N.Y. Pub. Off. Law § 74

(3)(a). Without the particularity

requirement, federal corruption statutes could reach a wide range of activity not

prohibited by New York law.

In short, “[s]erving constituents and supporting legislation that will benefit

the district and individuals and groups therein is the everyday business of a

legislator.” McCormick,

500 U.S. at 272

. The federal criminal statutes cannot be

read in a manner that “reaches any effort to buy favor or generalized goodwill

from an official who either has been, is, or may at some unknown, unspecified

later time, be in a position to act favorably to the giver’s interests,” Sun–Diamond,

526 U.S. at 405

, or that “’involves the Federal Government in setting standards’ of

59 ‘good government for local and state officials,’” McDonnell,

136 S. Ct. at 2373

(quoting McNally v. United States,

483 U.S. 350, 360

(1987)).

For the foregoing reasons, Ganim’s rule that the jury “need not find that the

specific act to be performed was identified at the time of the promise, nor need it

link each specific benefit to a single official act,”

, remains good law.

Furthermore, McDonnell makes clear that the official need not communicate that

he will, or otherwise believe that he is expected to, affect the relevant “question,

matter, cause, suit, proceeding or controversy” by any particular “means.”

McDonnell,

136 S. Ct. at 2371

(emphasis added). That is, the official need not

promise to perform any precise act upon the relevant question or matter. But to

the extent that the Government reads McDonnell to allow an open‐ended promise

limited only by those acts that benefit the payor and not to require that a particular

question or matter be identified at the time the official enters into a quid pro quo

arrangement, we disagree.

With respect to honest services fraud, the jury was instructed that it needed

only to find that Silver was “expected to exercise official influence or take official

action for the benefit of the payor.” Special App. 30–31 (emphasis added). Instead,

the jury should have been instructed that, to convict on honest services fraud, the

60 Government must prove that, at the time the bribe was accepted, Silver promised

to take official action on a specific and focused question or matter as the opportunities

to take such action arose.

As to Hobbs Act extortion, the jury was instructed that they could find Silver

guilty if they found that he “obtained property to which he was not entitled by his

public office, knowing that it was given in return for official acts as the opportunity

arose,” “that the extorted party was motivated, at least in part, by the expectation

that as a result of the payment, Mr. Silver would exercise official influence or

decision‐making for the benefit of the extorted party, . . . that Mr. Silver was aware of

that motivation,” and that the property was given “as an exchange for any official

action.”

Id.

at 32–33 (emphases added). Instead, the jury should have been told

that the quid pro quo element was satisfied if, at the time Silver accepted the

extorted property, he understood that he was expected, in exchange for those

payments, to take official action on a specific and focused question or matter as the

opportunity to do so arose.19 See, e.g., Ganim, 510 F.3d at 144–45 (finding no error

19We note too that prior instructions requiring the jury to find that the official understood that he or she was expected to exercise particular kinds of influence would not be in error after McDonnell. See, e.g., Ganim, 510 F.3d at 144–45. The phrase “particular kinds of influence” connotes that the official action must relate to a sufficiently particular, focused,

61 in instruction that the jury must find the official understood he was “expected as

a result of the payment to exercise particular kinds of influence . . . on behalf of the

payor, as specific opportunities arose” (emphasis added)).

Instructing a jury that an official need only understand her official action to

benefit the payor creates a situation where an official could accept a payment—

lawful or otherwise—and later incur criminal liability by voting on any legislation

or performing any official act on any topic that benefits the payor. While some may

find political contributions a corrupting influence in American politics, those

moral judgments do not define criminal liability.

In summary, the jury instructions were erroneous because the required quid

pro quo contained therein was too open‐ended. The instructions failed to convey

that Silver could not be convicted of honest services fraud unless the Government

proved that, at the time the bribe was accepted, Silver promised to take official

action on a specific and focused question or matter as the opportunities to take such

action arose. And, with respect to Hobbs Act Extortion, the instructions

erroneously failed to convey that the Government was required to prove that, at

or concrete question or matter. Furthermore, an exchange for a particular kind of influence is sufficiently definite to satisfy the quid pro quo requirement. 62 the time Silver accepted the extorted property, he understood that he was

expected, in exchange for those payments, to take official action on a specific and

focused question or matter as the opportunity to do so arose.

III. Harmlessness

Because the instructions are burdened with this error, we must determine

whether the error was harmless as to Silver’s convictions. For the erroneous

instructions to have been harmless, it must be “clear beyond a reasonable doubt

that a rational jury would have found [Silver] guilty absent the error.” Bah,

574 F.3d at 114

(quoting Quattrone,

441 F.3d at 177

). That is to say, we must be

convinced that a rational jury would have found that Silver entered into the

alleged quid pro quos understanding that he was expected to influence “specific,”

“focused, and concrete” questions or matters.20 The Government bears the burden

of establishing that any error is harmless. See Quattrone,

441 F.3d at 181

20As in McDonnell, there is no allegation that Silver accepted payments knowing they were given with the expectation of influencing a “cause, suit, proceeding or controversy.” We therefore focus only on whether Silver knew the payments were given with the expectation of influencing a “question or matter.” 63 A. The Instructions Could Have Misled the Jury to Convict Silver Despite a Lack of any Quid Pro Quo Related to the Mesothelioma Scheme After 2007.

As we noted in our earlier discussion, Silver’s convictions under Counts 1s,

2s, and 5s are dependent upon whether liability could attach to a promise to

perform official acts “for the benefit of the payor.” In light of our analysis of

McDonnell and Ganim, we cannot conclude, beyond a reasonable doubt, that a

rational jury would have found Silver guilty of counts related to the Mesothelioma

Scheme had it been properly instructed on the requirements of a quid pro quo under

an “as the opportunities arise” theory of bribery.

Because, as we discuss in more detail below, the statute of limitations

precludes consideration of the HCRA grants and the procurement of funding for

Taub’s wife’s charity, we limit our review to the other evidence remaining in the

record. This review reveals that the Government presented no evidence that Silver

made any promises to Taub, after 2007, regarding any action on any identified, or

even identifiable, question or matter—much less a focused or concrete question or

matter involving the exercise of governmental power. While the Government

argues that the character of Silver and Taub’s quid pro quo merely changed after

2007, we find no evidence in the record from which a rational jury could conclude

64 that any quid pro quo between Silver and Taub related to official acts existed after

2007. Instead, the only promise that could be inferred from the evidence presented

at trial is that Silver promised to keep Taub happy as the opportunities to do so

arose. Such a promise falls short of what Ganim required, even before the Supreme

Court narrowed the definition of an official act in McDonnell. Keeping someone

happy, without more, is not a promise to exercise particular kinds of influence,

and it is especially not a promise to perform official acts on an identified, focused,

and concrete matter or question that involves the exercise of governmental power.

See McDonnell,

136 S. Ct. at 2370

The last remaining argument that any error was harmless, then, is that a

rational jury would have found that Silver promised to honor Taub through an

Assembly resolution in exchange for referrals. While the Assembly resolution is

indisputably an official act, we find no evidence on the record from which a jury

could conclude Silver ever promised to pass the resolution or understood Taub’s

referrals were in exchange for his doing so. Instead, the evidence demonstrates

that the assembly resolution was “last minute,” and “rush[ed].” See Special App.

49. A rational jury could only have found that Silver engaged in a corrupt quid pro

quo exchanging referrals for the Assembly resolution by relying upon the very

65 instruction we find erroneous: that they need only find Silver promised to perform

official acts, for the benefit of the payor, as the opportunities arose. Consequently,

with respect to the Mesothelioma Scheme, the jury could have erroneously

convicted Silver based on a finding that he believed he was expected to take official

action to “benefit the payor,” in any way, in the future.21

With respect to Counts 1s, 2s, and 5s, the error is not harmless.

B. It is Clear Beyond a Reasonable Doubt that a Rational Jury Would Have Found that the Real Estate Scheme Concerned Sufficiently “Focused and Concrete” “Questions or Matters” “Involving a Formal Exercise of Governmental Power.”

With respect to the Real Estate Scheme, the question is whether it is clear

beyond a reasonable doubt that a rational jury would have found that Silver

21 Compare, for example, Jennings, where the Fourth Circuit found jury instructions plainly erroneous because they failed to convey that “the jury [was required] to find a relatively specific quid pro quo”—i.e., “that [the defendant] intended to trade specific payments for specific favors.”

160 F.3d. at 1022

(emphases added). The jury instructions were erroneous because “the court repeatedly charged that it was sufficient if [the defendant] paid [the public official] to influence [the official] ‘in connection with’ or ‘in reference to’ [the official’s agency’s] business.”

These allusions to agency business “were too general because they did not describe any official acts that [the defendant] intended to induce with his payments to [the official]. These explanations could have described a situation in which [the defendant] paid [the official] with a vague expectation of some future benefit.”

(original alterations and internal quotation marks omitted). Nevertheless, the Fourth Circuit found this error was harmless because the “pattern of behavior confirmed the existence of a quid pro quo.”

Id. at 1023

66 accepted referral fees with the belief that he was expected to influence a particular

matter, namely the relevant tax abatement and rent stabilization programs, absent

the error.22 Based on the evidence presented at trial, including circumstantial

evidence of the timing of PACB financing approvals and Silver’s “side letter”

retainer agreement, we conclude that it is clear, beyond a reasonable doubt, that a

properly instructed, rational jury would have reached the same conclusion.

Neither party argues, nor does the record reflect, that Silver and the

Developers themselves focused on a particular question or matter forming the

subject of the quid pro quo in advance. However, the “side letter” provides strong

evidence of a quid pro quo between Silver and the Developers on a focused and

concrete question or matter. Not only does it reasonably constitute “behavior

indicating consciousness of guilt,” Bruno,

(quoting Friedman, 854

22 The Government suggests “shaping and supporting real estate legislation” as a properly defined question or matter. Appellee Br. at 56. We again disagree that this broad formulation qualifies as “the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” See McDonnell,

136 S. Ct. at 2369

. A narrower definition that focuses on particular programs—e.g., tax abatement and rent stabilization programs—is therefore required. However, the question or matter need not specify how the public official would support/oppose those programs—e.g., sponsoring a bill, lobbying colleagues to gather votes for that bill, or funding a study on the program’s efficacy. Despite the Government’s suggestion, we believe the facts as presented at trial suggest that such a narrowly defined question was implicitly identified. 67 F.2d at 554), it also supports a finding that Silver knew Glenwood sought to

exchange referrals for official action. Indeed, Glenwood’s lobbyist testified that

Glenwood’s owner signed the agreement because Silver was “extremely

influential and powerful, not somebody you would want to make not like you,”

and that not signing the letter could lead to “repercussions legislatively.” J.A. 823,

825.

Based on the fact that the Developers knew (i) Silver’s vote alone could

prevent them from obtaining PACB funding, and (ii) that Silver had an

extraordinary amount of power to influence the Rent Act (which required regular

renewal), it is clear beyond a reasonable doubt that a rational, properly instructed

jury would conclude that the Developers signed the “side letter” and thus

provided business to G&I in exchange for official actions related to those two

questions or matters. This is especially true in light of the circumstantial evidence

presented by the Government, which demonstrated a pattern between Silver’s

PACB approvals, actions with respect to the Rent Act of 2011, and the Developers’

provision of business to G&I. We believe it is clear beyond a reasonable doubt that

a rational jury would have concluded, absent the error, that Silver understood he

68 was expected to support specific, identified provisions of the Rent Act of 2011 in

exchange for the Developers’ provision of business to G&I.

Furthermore, we find that the circumstantial timing of Silver’s PACB

funding approvals and Glenwood’s signing of the “side letter” demonstrate that

one of the identified, focused, and concrete matters at the heart of Silver’s quid pro

quo with the Developers was whether the State would finance the Developers’

projects through PACB funding in exchange for the Developers’ provision of

business to G&I.

On this evidence, we find that the district court’s failure to instruct the jury

that Silver must have believed the Developers sought his influence on “focused

and concrete” matters was harmless. That is, we are convinced, beyond a

reasonable doubt, that a rational, properly instructed jury would have found Silver

possessed the required mens rea at the time he accepted the payment. This is

especially true because the district court instructed the jury that, should they find

“Mr. Silver understood that the benefits were provided solely to cultivate goodwill

or to nurture a relationship with the person or entity who provided the benefit,”

then no quid pro quo was proven. Special App. 30.

69 We therefore affirm Silver ’s convictions for the Real Estate Scheme under

Counts 3s, 4s, and 6s.

IV. Because There is Insufficient Evidence to Prove the Mesothelioma Scheme Beyond a Reasonable Doubt, We Remand with Instructions to Vacate Those Counts.

Having determined that the erroneous jury instructions were not harmless

with respect to the Mesothelioma Scheme, we must assess whether those counts

should be remanded for a retrial or dismissed outright. Ordinarily, “[a]n

erroneous jury instruction mandates a new trial unless the error is harmless.” Cobb

v. Pozzi,

363 F.3d 89, 112

(2d Cir. 2004). However, on rare occasions, we have

remanded with instructions to dismiss charges without a trial where it is

undisputed that the evidence would be insufficient to prove the elements of the

charges beyond a reasonable doubt to a properly instructed jury. See, e.g., United

States v. Newman,

773 F.3d 438, 451, 455

(2d Cir. 2014), abrogated on other grounds by

Salman v. United States,

137 S. Ct. 420

(2016).

Here, we must consider whether the jury could have found the relevant

elements of each of the Mesothelioma Scheme counts beyond a reasonable doubt.

As noted earlier, for Hobbs Act extortion, the Government needed to prove that

Silver “obtain[ed] . . . property from another, with his consent, induced . . . under

70 color of official right.”

18 U.S.C. § 1951

(b)(2); see also Silver I, 864 F.3d at 113–14.

Additionally, and most relevant to the resolution of this case, the Government

must prove a quid pro quo, namely that the official “promise[d] . . . to perform or

not to perform an official act” in return for payment, McCormick,

500 U.S. at 273

or accepted a payment, “knowing that the payment was made in return for official

acts,” Evans,

504 U.S. at 268

Similarly, with respect to honest services wire and mail fraud, the

Government needed to prove that Silver used the mails and interstate wire

communications to participate in a “scheme or artifice” to “deprive another of the

intangible right of honest services.” See

18 U.S.C. §§ 1341

, 1343, 1346; Ganim, 510

F.3d at 147–48. As discussed above, section 1346 criminalizes only bribery and

kickbacks, and the parties agreed to define bribery by reference to

18 U.S.C. § 201

which criminalizes “corruptly” demanding, seeking, receiving, accepting, or

agreeing to receive or accept “anything of value personally or for any other person

or entity, in return for . . . being influenced in the performance of any official act.”

See

18 U.S.C. § 201

(b)(2)(A); McDonnell,

136 S. Ct. at 2365

Here, Silver was not indicted until February 2015. The five‐year statute of

limitations thus excludes conduct that occurred before February 2010. See 18

71 U.S.C. § 3282

(a). Because Silver refused to award additional HCRA grants to Taub

after 2007—prior to the limitations period—the Government “need[ed] . . . [to]

prove that some aspect of the particular quid pro quo scheme continued into the

statute of limitations period.” Silver I,

864 F.3d at 122

. It did not.

Although Taub’s referrals continued into the limitations period, until at

least 2013, the Government does not contend that those referrals constituted “back

pay” for the 2005, 2006, or 2007 grants.23 Indeed, by 2007 Silver had told Taub that

the HCRA grants would cease, and Taub himself testified that the post‐2010

referrals were, instead, intended to curry generalized goodwill. See, e.g., J.A. 500

(Taub testifying that he continued sending cases to Silver because he “was a very

powerful man and there were other ways in which he could assist in helping

mesothelioma patients” (emphasis added)); id. at 1775 (2010 email from Taub

stating that he would “keep giving cases to [Silver] because [Taub] may need him

in the future—he is the most powerful man in New York State” (emphasis added));

23See, e.g., Jennings,

160 F.3d at 1014

(“Because the distinguishing factor between a bribe and an illegal gratuity is the intent behind the payment, the timing of the payment in relation to the official act for which it is made is (in theory) irrelevant. Bribes often are paid before the fact, but ‘it is only logical that in certain situations the bribe will not actually be conveyed until the act is done.’” (citation omitted) (quoting United States v. Campbell,

684 F.2d 141, 148

(D.C. Cir. 1982))). 72 id. at 505 (Taub testifying that he continued referring cases because he hoped that

“if cases were referred to [Silver], he would continue to be incentivized to be an

advocate for mesothelioma research if the occasion arose” (emphasis added)).

Moreover, the fact that W&L continued to pay Silver after 2010 for legal fees

generated on the pre‐2007 referrals does not automatically extend the scheme for

statute of limitations purposes. Rather, those payments must be made “in

furtherance of” an ongoing scheme, not merely as “the result of a completed” one.

See United States v. Grimm,

738 F.3d 498, 503

(2d Cir. 2013).24

The five‐year statute of limitations under

18 U.S.C. § 3282

(a) is not extended

“where the payoff merely consists of a lengthy, indefinite series of ordinary,

typically noncriminal, unilateral actions and there is no evidence that any

concerted activity posing the special societal dangers of conspiracy is still taking

place.”

Id. at 502

(alterations omitted) (quoting United States v. Salmonese,

352 F.3d 608, 616

(2d Cir. 2003)); see also United States v. Rutigliano,

790 F.3d 389

, 400–01 (2d

24See also Special App. 35 (district court instructing jury that, “as to each count of wire or mail fraud you must find that a wire communication or mailing respectively was made after February 19, 2010, in furtherance of that crime. As to each extortion count, you must find that Mr. Silver or, at the direction of Mr. Silver, a third party obtained property or money from the scheme after February 19”).

73 Cir. 2015) (reviewing conspiracy to commit mail and wire fraud under Grimm’s

standard).25 In Grimm, for example, we determined that regular interest payments

on a guaranteed investment contract did not trigger a new limitations period

because they were “serial payments that . . . [were] lengthy, indefinite, ordinary,

typically noncriminal and unilateral,” and made by wire over a “prolonged time.”

738 F.3d at 503

; cf. Rutigliano, 790 F.3d at 400–01 (finding limitations period

extended where coconspirators “engaged, within the limitations period, in

‘measures of concealment’ and ‘other corrupt intervention’” (quoting Grimm,

738 F.3d at 503

)).

Based on this reasoning, we disagree with the Government that the post‐

2010 payments provide evidence of an ongoing scheme. There is no evidence of

any “corrupt intervention” here—and certainly nothing like the conduct in

Rutigliano, where the defendants, within the limitations period, mailed false

disability recertification forms to secure continued payments. See 790 F.3d at 400–

01. Instead, the compensation that Silver received after 2010 for referrals Taub

25Although Grimm and Rutigliano concerned conspiracy prosecutions, their reasoning is grounded in conspiracy’s acts‐in‐furtherance requirement and is therefore equally applicable to the ongoing bribery scheme alleged here. 74 made before 2007—one third of any fee ultimately earned by W&L—much more

closely resembles the indefinite and prolonged interest payments in Grimm. See

Appellee 28(j) Letter, Mar. 14, 2019 (detailing 19 payments between August 2010

and September 2014, ranging from $0.86 to $26,568.26, made to Silver over the

course of four years for the referral of one client in February 2004).

The thing of value (or the quid) that Silver received from Taub in exchange

for his promise to deliver the HCRA grants was the referrals themselves—not the

subsequent payouts from W&L on the referrals that generated fees for the firm. If

Silver had been paid in oil leases or diamonds or savings bonds, the result would

be the same, regardless of when those properties were subsequently monetized.

Here, Taub paid his bribe in referrals made between 2005 and 2007—well before

the February 2010 limitations cut off. The fact that W&L later earned fees and cut

checks to Silver does not alter the fact that the HCRA scheme was completed by

2007. Thus, because the within‐limitations payments to Silver from W&L were

“the result of a completed [scheme], and . . . not in furtherance of one that [was]

ongoing,” the HCRA scheme was not renewed with each payment. See Grimm,

738 F.3d at 503

(second emphasis added).

75 Because the HCRA grants are time‐barred, we turn to the remaining three

alleged official acts to determine whether they provide evidence supporting the

Mesothelioma Scheme convictions.

To begin, Silver allocated state funding for Taub’s wife’s charity in 2008,

prior to the limitations period. As with the HCRA grants, there is no evidence that

post‐2010 referrals—i.e., referrals within the relevant limitations period—were

made in return for this prior grant. The charity grant is likewise time‐barred and

cannot sustain Silver’s conviction.

As to the charity race, McDonnell makes clear that Silver’s offer to assist in

securing permits for Taub’s planned “Miles for Meso” event did not constitute an

official act. At trial, the Government showed that Silver met with Taub in 2011 to

discuss a charity run in Lower Manhattan, which had a moratorium on such

events. Silver subsequently sent a letter to Taub, on official letterhead, explaining

the permit procedure and promising to “help . . . navigate th[e] process if needed.”

J.A. 1774. Because “using government letterhead is not, by itself, a formal exercise

of government power on a matter similar to a hearing or lawsuit,” Silver I,

864 F.3d at 120

, no reasonable jury could find that Silver’s promise to “help . . . navigate

th[e] process,” J.A. 1774, constituted a promise to use his office to Taub’s benefit.

76 The lone alleged official act remaining is the Assembly resolution. Although

Silver concedes that the resolution constitutes an official act, the Government did

not present any evidence to suggest that Silver understood, at the time he accepted

any patient referrals, that Assembly recognition of Taub was one of the “specific,”

“focused, and concrete” matters or questions that he was expected to influence.26

Instead, during trial the Government described the effort to secure the

commendation as one that proceeded “on a rush[ed] basis” and “at the last

minute.” Special App. 49.

Thus, Silver’s conviction on the Mesothelioma Scheme turns on whether a

rational jury could find that Silver either promised or understood he was expected

to exchange the Assembly resolution for referrals.

Without the HCRA grants, we are compelled to conclude that “no rational

trier of fact could have found [Silver] guilty beyond a reasonable doubt” with

respect to Counts 1s, 2s, and 5s. See United States v. Cassese,

428 F.3d 92, 98

(2d Cir.

26 The Government suggests “helping mesothelioma patients” as a properly defined question or matter. Appellee Br. at 11. We disagree that this broad formulation qualifies as “the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” See McDonnell,

136 S. Ct. at 2369

77 2005) (quoting United States v. Jackson,

335 F.3d 170, 180

(2d Cir. 2003)); see also

Newman,

773 F.3d at 455

(identifying instructional error and ordering dismissal of

the indictment under Rule 29 because even a properly instructed jury would not

have had sufficient evidence to convict).27

For the same reasons that we found the erroneous jury instructions were not

harmless with respect to Counts 1s, 2,s, and 5s, we find that there is no evidence

that Silver engaged in a quid pro quo within the limitations period, much less

understood he was expected to influence a “focused and concrete” question or

matter in exchange for mesothelioma client referrals.

At best, the Government’s evidence suggests Silver understood he was

expected to influence some or any matter beneficial to Taub, should an

opportunity to do so arise. In essence, the Government argues that after the HCRA

scheme ended, without even a “wink[]” or a “nod[]” from Taub indicating what

he wanted in exchange for future referrals, see Evans,

504 U.S. at 274

(Kennedy, J.,

concurring in part and concurring in the judgment), Silver was found criminally

liable for engaging in outside work (an otherwise lawful endeavor) and then

27 Silver timely made a Rule 29 motion before the district court. It was denied. 78 helping a constituent (also an otherwise lawful endeavor). For the reasons

outlined above, this falls short of the mens rea required for bribery. And if there

were any doubt, the Government fails to argue in its brief that the exchange of

referrals for the Assembly resolution provides sufficient evidence to support

conviction on the counts in question. See Appellee Br. at 55–56 (pointing to

“assistance in securing permits for a charity race” as the only identified official act

falling within the limitations period).

Accordingly, we reverse the judgment of the district court on Counts 1s, 2s

and 5s and remand with directions for the district court to enter a judgment of

acquittal on these counts.

V. Money Laundering

Finally, the Government alleged that Silver laundered the proceeds of the

Mesothelioma and Real Estate Schemes by investing them in high‐yield, private

investment vehicles with the help of Jordan Levy, a private investor.28 In May

2011, Silver instructed Levy to transfer one half of an investment to his wife to

avoid publicly disclosing the full amount of the investment. There is no dispute

28 Levy was unaware of the source of Silverʹs funds. 79 that the underlying investment, an account at Counsel Financial, was comprised

in part of proceeds from the 2006–2007 HCRA scheme.

Silver argues that vacatur of his extortion and honest services fraud counts

compels vacatur of his money laundering count as well. We disagree. Not only

are the remaining counts of conviction sufficient to sustain his money laundering

conviction, but because Silver knowingly transferred proceeds of the HCRA

scheme within the limitations period, vacatur of all of his counts of conviction

would not compel a different result.

The money laundering statute,

18 U.S.C. § 1957

, prohibits “knowingly

engag[ing] . . . in a monetary transaction in criminally derived property . . . .”29

Id.

§ 1957(a). “[M]onetary transaction” is defined as “the deposit, withdrawal,

transfer, or exchange . . . of funds or a monetary instrument . . . by, through, or to

a financial institution.” Id. § 1957(f)(1). “[C]riminally derived property” is defined

as “any property constituting, or derived from, proceeds obtained from a criminal

offense.” Id. § 1957(f)(2).

29 The statute also requires that the property be derived from “specified unlawful activity.”

18 U.S.C. § 1957

(a). Mail fraud, wire fraud, and Hobbs Act extortion categorically qualify as such. See

id.

§ 1956(c)(7)(A) (citing id. § 1961(1)). 80 Significantly, an individual need not have been convicted of the underlying

criminal offense in order to be convicted of laundering the proceeds thereof. See

United States v. Pierce,

224 F.3d 158

, 162–63, 165–67 (2d Cir. 2000). Rather, the

Government need only prove, beyond a reasonable doubt, that an individual

committed all elements of the underlying offense and that the defendant knew

that the proceeds were derived from such unlawful activity. See

id.

Nor must the

underlying offense take place within the limitations period. For example, in United

States v. Monaco, we rejected the defendant’s argument that her prosecution for

money laundering violated the Ex Post Facto Clause.

194 F.3d 381, 385, 387

(2d

Cir. 1999). Although the illegal proceeds were generated prior to enactment of the

money laundering statute, the laundering activity continued post‐enactment.

Only the latter fact was material because “[t]he statute . . . makes no distinction

based on when the illegal activity took place or when the proceeds were received.”

Id. at 385

; see also United States v. Gabel,

85 F.3d 1217, 1224

(7th Cir. 1996) (“[Money

laundering] focuses on the conversion of the fruits of the earlier crimes into other,

presumably less detectable, forms. . . . Only when the effort to conduct the

financial transaction described by the statute begins does the relevant conduct

81 commence for money laundering itself.”).30 The relevant act for purposes of the

statute of limitations, in other words, is the knowing “deposit, withdrawal,

transfer, or exchange” of “proceeds obtained from a criminal offense.”

18 U.S.C. § 1957

(f)(1)‐(2).

We are convinced, beyond a reasonable doubt, that a rational jury would

have found that Silver laundered the proceeds of a criminal offense within the

limitations period. See Bah,

574 F.3d at 114

. As to the underlying criminal offense,

it is clear that, but for the statute of limitations, even a properly charged jury would

have convicted Silver of extortion and honest services fraud in relation to the

HCRA scheme. Put differently, it is clear that Silver committed all elements of the

criminal offense underlying his money laundering conviction, albeit outside the

30Indeed, it is often the case that the proceeds of the criminal offense were derived long before the money laundering transaction. Imagine a scenario where an individual sold drugs in 2005 and hid the cash proceeds in her basement for ten years. Imagine further that she then decided to sell the house in 2015 and deposited the cash from the basement into a bank account disguised as proceeds from the sale of the house. Although she could not be prosecuted for the narcotics trafficking, as the statute of limitations would have run, the government could still prosecute her for the money laundering. See generally United States v. Szur,

289 F.3d 200, 214

(2d Cir. 2002) (“[M]oney laundering does not focus on the specifics of the predicate offense, [and] it does not matter when all the acts constituting the predicate offense take place.” (quoting United States v. Mankarious,

151 F.3d 694, 706

(7th Cir. 1998))).

82 five‐year statute of limitations.31 As to the limitations period, the relevant

unlawful act for the money laundering count is not the HCRA scheme itself, but

instead the knowing transfer of the proceeds thereof. That act occurred in 2011

and was, therefore, well within the limitations period.

Thus, we affirm Silver’s conviction under Count 7s for money laundering.

***

So long as “curry[ing] favor” and “build[ing] a reservoir of goodwill” with

politicians is legal, see Ganim,

510 F.3d at 146

; Sun–Diamond,

526 U.S. at 405

, the

Government’s burden in bribery prosecutions remains high. This case provides a

useful illustration of that which is bribery and that which is not. With respect to

the HCRA grants, Silver received a thing of value in return for exerting official

influence on a particular matter. This is a classic example of bribery, and, but for

the statute of limitations, Silver’s conviction for the Mesothelioma Scheme would

stand, regardless of the jury instructions.

31Cf. Silver I,

864 F.3d at 124

(vacating money laundering conviction following vacatur of the underlying extortion and honest services fraud convictions because a properly instructed jury may not have found all elements of the predicate offenses satisfied). 83 On the other end of the spectrum sit the Assembly commendation and

charity race permits. An official who merely accepts a thing of value in an

otherwise‐legal manner (e.g., client referrals, as permitted under New York law)

has not committed a crime. If that official later acts to the benefit of the payor, she

still has not committed a crime. It is only upon a showing that, at the time the

official accepted the payment, she understood it to be a payment in exchange for

official influence on some specific, focused, and concrete matter involving the

formal exercise of governmental power that the Government has met its burden.

CONCLUSION

For the foregoing reasons, we REVERSE the judgment and VACATE the

conviction on Counts 1s, 2s, and 5s, and AFFIRM the conviction on Counts 3s, 4s,

6s, and 7s. We REMAND to the district court to dismiss the indictment with

prejudice as it pertains to the reversed counts, for resentencing, and for such

further proceedings as may be appropriate and consistent with this opinion with

respect to the remaining counts.

84 LOHIER, Circuit Judge, concurring:

I concur in the majority’s excellent opinion. As the opinion makes clear,

the “as opportunities arise” doctrine remains alive and well in our Circuit, and

neither Hobbs Act extortion nor honest services fraud requires a meeting‐of‐the‐

minds agreement or the identification, at the time of the agreement, of the

particular act to be performed. I agree that, although Sheldon Silver’s

convictions related to the Real Estate Scheme and money laundering should be

affirmed, his convictions related to the Mesothelioma Scheme falter because the

Government, which opted to proceed solely on an “as opportunities arise”

theory, failed to identify a sufficiently specific, focused, and concrete question or

matter relating to conduct falling within the statute of limitations.

I write separately to make two points about the quite narrow scope of

today’s opinion.

First, the opinion simply clarifies, without altering, the “as opportunities

arise” doctrine that has long been part of our circuit precedent. It does so by

confirming that the “as opportunities arise” theory described in United States v.

Ganim,

510 F.3d 134

(2d Cir. 2007), “remains good law.” Majority Op. at 60.

That “good law” includes Ganim’s “rule that the jury ‘need not find that the

specific act to be performed was identified at the time of the promise, nor need it link each specific benefit to a single official act.’”

(quoting Ganim,

). The assertion that the question or matter (rather than the specific act to be

performed) must be identified with sufficient specificity at the time of the

payment or promise is not new for us. See id. at 33 (“This observation does not

signal a change in the law.”); see also id. at 54 & n.15. To the contrary, it derives

directly from our precedent, which requires “some degree of specificity to the

public official’s promise” and some “definition” to the question or matter. Id. at

55; see Ganim, 510 F.3d at 144–45 (approving jury instructions requiring that the

official understood the payment to be in exchange for “a specific exercise of the

defendant’s official powers” or for “particular kinds of influence”); United States

v. Rosen,

716 F.3d 691, 700

(2d Cir. 2013) (“We have made crystal clear that the

federal bribery and honest services fraud statutes . . . criminalize schemes

involving payments . . . in exchange for official acts . . . even if the payment is not

exchanged for a particular act but given in expectation that the official will

exercise particular kinds of influence[.]” (emphasis added) (quotation marks

omitted)). On the other hand, McDonnell v. United States,

136 S. Ct. 2355

(2016),

in my view, tells us nothing about how or when the question or matter needs to

2 be identified, other than to hold that it must be the subject of an official act. See

id. at 2368

, 2371–72.

The majority opinion wisely leaves unaddressed another complicated

issue. It refrains from prescribing how specific “either the payor or the official”

must be in defining “the relevant matter or question” at the time of the promise.

Majority Op. at 33–34. Instead, all the opinion requires is that there be more than

a vague and “open‐ended” promise to do whatever the official later decides

might benefit the payor.

Id.

at 38–39, 55. What more is required is best left to

district courts or future panels to iron out over time. For now, we determine

only that the promise identified by the Government to anchor the counts of

conviction for the Mesothelioma Scheme in this case falls short of supporting a

bribery conviction.

The majority opinion is appropriately narrow in another important way. It

confines its holding to the “as opportunities arise” theory of bribery defined in

Ganim, observing that other schemes—sometimes referred to as the “stream of

benefits” or “retainer” theories of bribery—are not even implicated in this case.

Id.

at 24 n.7. It is true that the majority does not in detail distinguish Ganim’s “as

opportunities arise” theory from these other theories of bribery. It nonetheless

3 recognizes each theory as different from the “as opportunities arise” theory in

doctrinally significant ways.

Consider one example of a theory of bribery not at play in this case: a bribe

to an official in exchange for a future favor, in the form of a future official act (a

vote, for instance) that will be identified by the payor at a later date.

Id.

That

bribery scheme, the majority explains, is not before us. Consider another

example not captured by the “as opportunities arise” theory: a payment in

exchange for a promise to take all future official actions to benefit the payor. The

payment is not in exchange for a vague promise to act in the payor’s general

interests at discrete moments to be determined only at the official’s discretion (as

alleged in the Mesothelioma Scheme). Instead, it solicits a promise that the

official will filter every official act through the lens of the payor’s interests. In

other words, the promise is not vague, amorphous, or subject only to the

official’s discretion of when and where to act. Although the matter that is the

subject of the promise is broad in scope, its contours are clearly defined.

Neither of these examples fits the “as opportunities arise” theory analyzed

in the majority opinion, but in each example the official “is in the pocket” of a

private individual, and the requisite corrupt intent is beyond reasonable doubt.

4 See Ganim,