well here now counsel in united states of america versus sheldon silver another emergency motion in this case an emergency motion for a stay of surrender da and before we begin of counsel bear with me i'd like to make a statement for the benefit of counsel and for the proverbial record so i'd be seated we have before us the appellant's motion for a stay of their tobar five twenty eighteen surrender date and financial penalties for release pending appeal we understand the counsel for both sides are ready for argument but it may be useful before calling on mr fetter to set the stage a bit the appellant was convicted on may eleventh twenty eighteen of two counts of honest services mail fraud t motions you count was sentenced on july twenty seventh twenty eight hundred to imprisonment for seven years fined one point seven five million dollars and ordered to forfeit the proceeds of his crimes a characteristically careful opinion judge capernaum on september seventeenth twenty eighteen found by clear and convincing evidence that mr sooner poses no risk of flight or danger to the community the night and relevant part of his motion to stay his surrender date and his financial penalties because in her view and that of a government the appeal to this court raises no substantial issues likely to result in before us because the appellant would otherwise be quire the surrender later this week the motion was referred immediately to judge peter w hall on an emergency as an emergency one judge motion on september twenty five that is today's layer judge hall and that in order to temporarily stay in a surrender date and financial penalties until this three judge motions panel could consider and rule on the motion so in light of the fact that all concerned agree that mr silver there's not pose a risk of flight or danger to the community the remaining narrow questions before us today question really is whether mr silver's appeal raises substantial issues likely to result in a reversal or a new trial in the past we have had occasion to observe that a substantial question at this stage is one that is a close question and one that very well could be the side or the other way service counsel have identified two errors of law that in their view satisfy the standard and errors that are not harmless and thus one bail pending appeal specifically counsel contend that the district court heard by one failing to instruct the jury silver guilty without finding that he agreed to perform any particular official act at the time of the alleged quid pro quo before we turn to council to address these two narrow issues we pause to note that neither the questions we ask of counsel nor are the citizen or mr silver's motion are intended to intimate any view regarding the merits of mr sousa appeal of his conviction this lame merits panel run and we are not here to predict the possibility of reversal so we turn now issues is your honor identified i want to address them individually but there's a core issue underlying both of them which is that both the district court and the government here are lost sight of limitations that the supreme court has said are critical to distinguishing conduct that may not win any good government awards but is not outlawed by the federal bribery laws and the specific conduct that is unlawful under the bribery laws federal bribery what does not prohibit everything that seems better distasteful it prohibits something very specific doesn't prohibit providing benefits to powerful officials to curry favor with them it doesn't prove it officials from taking actions that they know affect their contributors or benefactors when it does prohibit particularly after mcdonnell is when something in the narrow category of what mcdonnell identifies as official acts is exchanged for benefits provided to the official so there are two things that has to be an exchange not unilateral conduct by one side and it has to be for something that mcdonald defines as an official act the district court and the government race both of those requirements so first the requirement of  an exchange the district court refused to instruct that there had to be an agreement between the alleged bribe payers and mr silver even told the jury to focus only on mr silverstein ten not the intent of the alleged bribe giver giver and that's not the law for several reasons and i mean first of all there are a lot of cases we've cited obviously that refer to this as saying bribery involves an agreement but let me start just with the basic concept everything even looking most recently as mcdon says that to cross the line from something where somebody may be doing something for a benefactor but with that we allow public officials to do or at least make it criminal into bribery you need the exchange of a thing of value for an official act an exchange necessarily involves two parties not just unilateral intent of the recipient there's no exchange without being exchanged between two parties in the text of section two zero one which is what we look to now for on a service is fraud bribery and for bribery the text of the statute says that the thing of value has to be received in return for being influenced it doesn't say received with the intent of being influenced your expectation of being influence has to be in return for being influenced so again it's an agreed upon exchange not unilateral state of mind and she thinks it's a bribe it's not criminal unless the person giving you also said that that's right or at least unless the person giving it thought it was in exchange for  received who in this case is the one who was indicted for i don't know your honor if mens rea is the right term but basically it does whatever you want to term it it has to be offered in exchange for the official acts and not for what the district court permit and what the government expressly and erroneous lee argued multiple times here for that they said that it was enough of two big problems here the governor argued repeatedly in summation number one that it was enough if the money was given basically to curry favor with because mr silver was a powerful official we had just read to out the element that it's given for something specific and the government also said it's enough for you to convict if when mr silver was undertaking the official acts that we're talking about he had anywhere in his mind the fact that he had received these benefits and that's a huge problem because that again eliminates the issue yes and i think that there is a huge difference between somebody giving somebody benefits were could be campaign contributions but somebody benefiting are different treated they are only treated differently in that they're the agreement needs to be express but i mean look mcdonnell itself offers an example of something where someone provides benefits it's not campaign contributions they say you know someone who provides like tickets to a ballgame to an official right you can provide benefits to an official you can even do it as in sun diamond in the group to the statue you can even do it because it's a powerful official that you want to relationship with and that is different from and an official has a lot to do things that affect people who receive benefits from it may not be attractive to everybody but that's not bribery bribery is the exchange of one for the other there's no such thing as an exchange only on one side and the jury was also again the government repeatedly said this if you find that he took actions as with what he received anywhere in his mind that's enough to make him guilty that doesn't describe bribery that describes conflict of interest it reads out again the element it has to be that the benefit was given for the official acts not that the i do not i'm not at all clear were  acutely interested in and i go into the legislators office on monday leave a bag of money on the table thank him for his time and see i'm not clear that i see an agreement under those circumstances but i certainly but i certainly see bribery but i completely agree roger and the key there is you tell the jury if you find that the money was given for the purpose of getting this vote and that it was accepted with the undertaking to make that  the jury can infer that that was a private but what that instructions here said and it's not just the technical question of whether it said there has to be an agreement the judge specifically told the jury it doesn't matter it's only mr silver it doesn't matter whether it was offered in exchange for official act it can't have been offered as the witnesses testify the government's own witnesses like mr tabb said look he was important person i wanted to preserve the relationship that is different from saying now it can be that if there are specific things if it's being exchanged for civic think that fine but to something given to curry favor is not the crime of bribery and that without even getting to the official acts problem here if you'll permit me to say something briefly agreements or make sure in the stand your argument you're arguing that this record should require an explicit or expression no no no not at all we didn't request that that's not required by the law but the district court should no no there's a clear distinction in the supreme court law in this court's law there doesn't have to be an explicit agreement because of course in the cases of bribery there are all sorts of situations where it won't be spoken say that accepting the money and undertaking the vote two things about that ok are two things one is i don't i don't agree with that i think a jury could definitely infer that under no circumstances accepting the money and making the vote is sufficient evidence of an unspoken agreement that it was taking the money what sense the issue court preclude a finding of that storm well the problem is not precluding the problem is that it's one thing to say that the jury can infer it from the circumstances it's another thing to do it the district court did which is to say we can just dispense with the jury having to make a finding at all and just what it is what the district  that if you look at the instruction yes ok so if you look at the instruction on a services explaining quid pro quo the district court first of all basically said that the understanding with which which the benefit is given doesn't matter specifically told the jury to ignore what the pay your understood this is a twenty forty four of the transcript the intent of the party given the thing of value may be different from the intent of the recipient number one then says the government only has to prove that mr silver not the bribe giver understood that as a result of the bri he was expected to exercise official influence or take official action for the benefit of the pay or an intended to do so why isn't there an implicit reference to an agreement or why is that an agreement without the use of the word agreement because and this if you look at what was actually argued here in the rest of the instructions not only is i mean first of all when you say it doesn't matter what the bride pay or is thinking that is said you don't have to file an agreement but the government argued in the district court said at various points that it's enough if the money was given to head them there are various things that were not in exchange for anything but just because he's a powerful legislator because he wanted to have a relationship all of those things are we may well view is unsavory if i were new york state i wouldn't necessarily allow legislators to have clients and get fees and all the rest but those aren't within the scope of bribery honor not only is that sufficient at what i've been trying to say i think is that you don't even need him to say that that the jury very important here to distinguish between what evidence is going to suffice and what the crime is that you're asking the jury to find right and but i mean what the elements are case isn't for us obviously i think that a jury could infer from that that that's exactly that was something given in return for being influenced on the vote you don't need with is something completely different where it's not the question of is there enough to understand that this was in exchange for that the jury is being told it doesn't even the money can have been given for could completely other reasons or in a general desire to curry favor posing supposing i don't like change the hypothetical yeah and have the person who pays the money goes you should pardon the but the recipient thinks it is an action on the basis you see there's no right that's not bribery that it's not bribery is an exchange right again look at the text of the statute among and what the language of the case is say the text of the statute says that the thing of value has to be in return for being in florence and that's not a one sided thing and going back to your hypotheticals so the first question is we're talking about what's enough to infer an agreement but my point is there has to be an agreement what the jury what the judge was permitting here and what the government basically expressly argued is that if the person with the money at  three years earlier had provided the money or given him a client or a job and then he takes a vote that happens to benefit that person the only thing standing between him and being convicted of bribery is number one prosecutorial discretion whether the government decides to prosecute it and number two whether the jury is going to decide that the legislature did the legislator did or didn't have in mind at the time he voted that three years ago he received a benefit from the person and that is not the crime of bribery again like if you look at sun diamond which is a different part of the statute but still makes clear it's not unlawful under federal law which is not a code of have fix for people to provide benefits to curry favor with powerful officials saying that you if the money was given for that and if the jury later decides well when he did something he had in mind he received it that's not bribery that's a different offense trying to be shoehorned into bribery i have to say something about you if it's ok about the mcdonnell issue here because it's also the way this was tried and instructed is something that basically neuters mcdonnell and is frankly incoherent in terms of how it was instructed to the jury right mcdonnell there's a stream of benefits theory in the circuit right if somebody agrees legislator get something like as a retainer whatever in exchange for i'm going to do you official favors that's a legitimate theory and that made sense prima donna because anything the official does in his official capacity was an official act post mcdonnell for a couple  reasons one of which is textual but before you even get to the text conceptually it's incoherent to say somebody that there was an agreement in the abstract to perform official acts as opportunities arise because nobody in the real world is sitting there with mcdonnell and talking about i'm going to do things for you that are official acts at best we don't even have it here but let's say that there were an agreement if you give me referrals i'll find ways to do favors for you but the favors may be things like we see nothing happened here within the statute of limitations period it is writing letters of recommendation saying help you figure out how to navigate a process to do an event that never ends up happening there isn't no real world sense in which someone is making right i'll give you this if in return you agree you're going to do me favors and by the way the favors have to be official acts and so conceptually it makes no sense but also because now that at the time of the ghanim case when we said it didn't have to be identified acts to be official acts and you could have a stream of benefits we weren't but now we are after mcdonnell and section two hundred one says that it has to be says to a one b two a right in return for being influenced in the performance of any official act and so the question is does any official act have to be actually identifiable acts that you're going to do or is any official act can it be an abstract agreement to do whatever official acts in the future that textual question has already been answered for section two a one in sun diamond which address a different part of the same statute but it's the same phrase any official act and there are the question was to be an illegal gratuity does it can it be in general or does it have to be linked to a particular acts and what the court says about this specific language is i'm sorry i'm just pulling up to a place where where i have it it has to be specific acts and frankly the idea of making the distinction the mcdonnell makes is meaningless if you're not talking about specific acts are you going to decide whether what's being agreed to is to do the things that  narrow category and it's illustrated because ok so here here's some diamond five twenty six us it three ninety eight at four  secs the text says in return for any official act for because of any official act means for because of some particular official act of whatever identity and then further down in the same paragraph same page the insistence upon an official act carefully defined seems pregnant with the requirement that some particular official act be identified improved the reason one thing that ties it all together is if you look at the facts of this case and how this abstract completely non real world instruction affects things and neuters mcdonnell is if you look at the facts here outside of the research funds that were definitively stopped long before the statute of limitations here the things that are happening in the statute of limitation are things like recommendation letters which very hard to imagine are official acts and the one official act in the limitations period is some meaningless proclamation and it's a huge difference between telling the jury that they would have to find that the benefits were provided in exchange for this proclamation that presumably no one cared about was never discussed dr tabooed never heard of it before it happened and telling them it's enough if you find in the abstract there was some agreement to undertake official access not like to mr feder i'll be giving the government some extra time as we've given to you as a final matter i'm just asking you this final question i think that the mcdonnell issue is the clearest because the court is saying that you've got a five and that well first of all the court's opinion refers to quid pro quo bribery as an agreement and the court doesn't require an agreement doesn't even require anything approaching an exchange it it didn't address these this use one way i wouldn't say that this court's opinion expresses a view one way or the other on these issues is not right so this is  new i mean i think it says things that bear on the issues that this isn't something one of the district court is refusing to follow this court's guidance except in that i think that the way this was instructed does speak a an inability i don't know whether it's an unwillingness or an inability to take mcdonnell seriously in saying that bribery is narrow it's not just for an official agreeing to do things when they're receiving something it's a very specific crime where you've got to find they were doing specific things and the way this is instructed just you know did not left the jury with with actually no no real way or no need to  enforce that important dividing line between conduct that we may find distasteful as the court says in the original opinion and the specific things that  sympathy whichever is harder but this is the problem with this you know this motion is not that the crime here we hear motions as you  know we hear these motions to stay pending appeal frequently and it isn't the problem the problem isn't that this is somehow easier to do easier to grant because it's a guy who's not go run away and it's white collar and it's actually that this is a more profound and important case than the run of cases that we hear in i'm talking my mind here and the problem i have is that  the end of the day the question is i think as we have stated whether this is a close question where they could be cited decided one way or the other i think that's a way of phrasing and for me that's a question  having to do with the merits it when we're not making a marriage determination has to do with the merits and i find it difficult to approach the merits question based on this much concern really is the difficulty of deciding something having to do with americans in this manner i represented the government before the district court i represent the government on appeal in light of your honor's comments let me actually flip the remarks i was going to make and start not what the law but with harmlessness but i do want to turn to the law and i want to actually take up judge parker hypothetical so the district court made an expressed finding in footnote two but it's a lengthy footnote that even if an agreement were required it would not matter at least as to its best a scheme and that is manifest response after that letter sent mr silver waits nothing happens once he gets his first check more than one hundred thousand dollars in return for those referrals state funding and it continues for years the evidence of an agreement here was overwhelming dr taubes credibility was not challenged expressly not challenge he said they had an implicit or implied understanding he talked about what he meant and over and over and again there's a this for that this for that and it is for that and it's not just state funding years later the referrals drop mr silver goes to dr taub and says in so many words why they go down  explains well he got funding from another source not three million dollars from the law firm so mr solmes brings into action he pushes through the official proclamation for the first time in two decades he recommends dr taub son for a degree than actually new york state had and the referrals dropped off didn't go to zero there's a meaningful drop i think it's government exhibit fifteen a way it is a chart at times this out of mr silver goes to dr talban says what happened dr mr silver springs into action and the referrals go back up and that's just that's not just the facts that's what dr tubb said happened so there's the factual response which is there plainly was an agreement here at least as to the specificity but there's also a legal one on the extortion point that i think it is that this whole question of agreement that we've tried to do with the help of my colleagues pursue  is metaphysics somewhat metaphysical the theological good you are stating the agreement is clear and the instructions would have made the concept of an agreement clear to your responses first yes it's corroborated among other things by which sheldon silver said to dr taub when he was approached by law enforcement he asked dr talbot did you tell them anything that question makes no sense unless sheldon silver knew that he and dr taub were in a corrupt relationship and had been for years so that's the my factual response it's a multiple trial but that some of the evidence that supports judge her probably is finding it certainly wasn't completely erroneous there's also a legal one daughter's look at page thirteen of her affirmation in opposition which is which refers among other things to transcript page two zero five four this is the extortion instruction it's not the same as the honest services instruction it actually obligated the jury to reasonable doubt 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 or refrain from taking action to the detriment of the extorted party and that mr silver was aware of their motivation and the jury convicted mr silver of all counts if i understand your government's position this is an instruction on an on agreement you didn't use that word to pick up on your r s point from a few minutes ago but absolutely this requires the jury to find the parties were subjectively literally motivated to exchange money for official action and that he knew it that defeats their argument as a matter of law the jury convicted of all counts even if the honest services fraud discounts perhaps should have had similar language it matters not that's my argument or harmlessness which i actually think makes this appeal easier because this is an appeal about a specific case and in this specific case any error was harmless but i do want to return to whether there's error at all even though the court doesn't have to find that one way or another and doesn't intend to intimate the answer one way or another and the answer is there was no air for three reasons first the fundamental argument here that an agreement is required collapses a substantive offense and a conspiracy offense into  to fence that is an extraordinarily unusual proposition it exists in an infinitesimal number of statutes the only one i'm aware of is what's known as a client conspiracy that is eighteen u s c three seventy one which criminalize an agreement to which is the premise for these charges after it down eighteen u s c two one expressly criminalizes receiving a payment intended to be influence for official action accepting a payment soliciting such a payment or agreeing to do so if the defense is right multiple of those words are read out of the statute it's no longer a crime to solicit it's no longer climb to receive it's no longer a crime to accept it only a crime to agree that is not the law that cannot be the law and it's not just because eighteen u s c two one is crystal clear it's because multiple precedents including the supreme court must be wrong if the defendant is right evidence involved an f b i agent talking to an official contrary of the defense repeated suggestion that evans had an agreement it cannot be so it was an f b i agent the f agent not intended to bribe the official the jury instructions in evans are actually set forth in the supreme court's decision and the entire discussion treats them as totally appropriate and it's holding which is also quot explains it's all about what the officials thinking and that has to be so because again he was speaking with an f b i agent but it's not just evidence boyland involved undercover f b i agents out fisi involved confidential witness or now it's important i think to make this granular so i want to go to judge parker's i pathetically if an individual walked into a congressman's office or in this case is some leader's office put a bag of cash on the desk and the official took it and it were clear that the official understood that was intended as a bribe that is subjectively in his head it's a bribe it doesn't matter what happens next but i want to flip it because that's referring to your i want to talk about the pay imagine for a second instead of the back cash on the desk the official sends an e mail to the same individual and says if you put a bag of cash on my desk i want to vote your w bribe into the text of to a one under president now the official is guilty it doesn't matter if the e mail literally was ever received scenario to the person responds i agree the only thing that just happened is now we have a second crime called conspiracy the first crime soliciting a bribe that already happened it was complete before the person responded sooner of three the person says i really i don't wan abroad or maybe he or she runs to the f b i if the defendant's right there's no crime in scenario three but scenario three and scenario one and scenario two are identical with respect to the official's actions they're identical with respect to the official's intent and they fit the statute which again expressly criminalizes offering receiving soliciting or accepting a bribe or agreeing to do so all three scenarios are crimes one of them the one that involves an agreement is also a second crime called conspiracy which was not charged in this case that is why the defendant's simply wrong he's not wrong there is a crime involving bribery that involves an agreement but it's conspiracy to commit robber it's not bribery so to put it more finally yes it's about mr silver's intent he's the defendant on trial he's charged with a substantive offense receive your except in a bribe it does not matter whether bribe either secretly or explicitly all that matters is did mr silver the evidence of that was overwhelming they don't even challenge it and even if it weren't because of the extortion instruction and less the court has questions about agreement i do want to turn to as opportunities arose so let me turn to the other claim which was not presented before the district court in seeking bail pending appeal it was presented earlier in the litigation but it matters that it wasn't presented in seeking bail because your honor doesn't have the benefit of judge proponents analysis as to whether that too was harmless it was and i'm going to talk about it but before i talk about that let me again talk about the law as opportunities arose this court has already decided meet but it's an important question not as a matter of law generally absolutely in this case now well and we're emotions panel really is trying to figure out that given the circumstance here where there's no risk of flight and no risk of danger direct danger to the community why not fight this out before marriage and all in due course with with the friend being liberty because congress has decided that defendants have a burden to demonstrate as to stanch will issue which doesn't just mean a legal issue that might be winnable you just thought that was a pretty substantial issue as a matter of law generally absolutely bring corruption prosecutions all the time we should know that's a valid theory but in this case no maybe i'll actually flip what i was going to do and go to harmlessness again this is what dr tubb said when asked what did he have in mind it's page two seventy two of the transcript and particularly to specify its inspections within the state with a week at the time he could influence legislation to help support research and cancer in general and mesothelioma in particular he could also help for example regulate insurance companies in the state so they would not balk at supporting clinical trials which they would like to consider as experimental but actually were very helpful in treating patients every single thing he said is official now to be clear he didn't know precisely which one of these things mr silver would do or precisely when but every single one is official so again even if the jury had not been told as opportunities arose it's plain as day that at the agreement stage at the very beginning we're talking about official action within the meaning of mcdonnell so again any error was harmless but i do want to push back on the idea that this is a close question in our view it's not for a very simple reason first of all in the mcdonnell case itself there actually was a retainer or as opportunity arose theory supreme court stated that it did absolutely nothing with it in the decision suggesting it didn't intend is this isn't on dude decades of case law in multiple circuits but more language used by the court but not rely on oh by the court i mean i think it's an interesting question when there is such language out of our colleagues ones that we have an interesting question jurisdiction and i'm not saying you do lack the authority to decide mcdonald said that what i'm saying is mcdonald didn't say that but it's not simply because they referenced it up to as opportunity arose it's because it's not inconsistent with the decision at all with the decisions about is there is a set of actions officials take that under the text of eighteen u s c to a one or deemed official that's what it's about it's not about timing it's actually always been the law long before mcdonnell that a crime starts when it starts which is to say if mr silver took a bribe intending to be influenced in official action heat the crime starts when he had that agreement or to use our preferred language when he accepted it that's always been the law all the mcdonald decide i what's in his mind is it this subset of actions that are deemed official and the question has to be yes not just because that's what mcdonnell says generally but again in this specific case the facts your cry out official through the district in general yes but more specifically what they wanted to do was have a fun race me a race for fund raising in and around the world trade center that is exceedingly difficult and so they reached out to mr silver's office the importance of the fund raising mr silver agreed to meet with him they talked about how difficult it would be this was actually not trivial the proclamation i think different people might have different views as to how trivial or not the proclamation was but as ro instructional right it's not a sufficiency challenge mr silver made that challenge it was rejected he's not raising that in this motion so the question is was the jury properly instructed it might be judged or honest the view on the patent on the jury you might  not counting the proclamation of that to be plenty of other evidence for you to rely upon but the question here is instructional and as opportunities arose fits squarely within mcdonnell and in any event it's harmless on the facts of this case that's true by the way just for this festive scheme that's actually also true for the real estate scheme in two thousand and eleven which post dates the statue of limitations mr silver advocated for particular real estate bill that was advantageous to the people paying him he did that after having a secret meeting with the chief lobbyist of one of those companies ensuring they were satisfied and then they signed a secret side agreement and no your honor knows from the original decision on a street corner so that he could keep getting paid mr silver had arguments he presented to the jury about why that's not nearly as corrupt as it sounds we had arguments and the jury decided it was that's a very discreet action so were all the votes that he either made or had its proxy give in the public authorities control board the p c b those are a series of discrete actions worth more than a billion dollars to the party paying him so again as opportunities arose here is harmless now i do want to respond to one suggestion time and again in summation are about all we said to the jury look at the vote on the real estate legislation look at what proceeded it looked at what look at what followed it just as i just said it is telling that the statements that my opponent refers to were not objected to in the district court like all right we'll take a recess and we'll come back we may or may not have decision on this to deliver but in the back in a few minutes we are in this is our order on september twenty three twenty eighteen the defendant appellant sheldon silver moved for an emergency stay his surrender date and financial penalties and for released pending appeal of his conditions of release is granted the appeal is expedited subarus initial grief will be due on or before a total of twenty six twenty eighteen the government's response will be due on or before november fourteenth twenty eighteen servers reply brief will be due on or before december three twenty eight in the appeal will be regarded as ready for oral argument by a marriage panel and as soon as possible after the september three twenty eighteen the stay expires seven days after the merits panel deems the matter submitted for  without prejudice to any other action on the matter by the merits panel at that time action on this motion is not intended to and does not intimate any view of any kind concerning the gravity of the offenses charged or the merits of this  is so ordered thank you very much