No.

20-A-____

IN THE SUPREME COURT OF THE UNITED STATES

SHELDON SILVER,

Applicant,
v.

UNITED STATES OF AMERICA,

Respondent.

EMERGENCY APPLICATION TO RECALL AND STAY

THE MANDATE, OR IN THE ALTERNATIVE RELEASE ON BAIL,
PENDING DISPOSITION OF CERTIORARI PETITION

Andrew J. M. Bentz Meir Feder

JONES DAY Counsel of Record
51 Louisiana Avenue N.W. James Loonam
Washington, DC 20001-2113 JONES DAY
Telephone: (202) 879-3939 250 Vesey Street
[email protected] New York, NY 10281
Telephone: (212) 326-3939
Facsimile: (212) 755-7306
[email protected]

Counsel for Applicant

 TABLE OF CONTENTS

Page
INDEX OF APPENDICES ........................................................................................... ii
TABLE OF AUTHORITIES ........................................................................................ iii
STATEMENT ................................................................................................................ 3
A. The Government’s Theory ....................................................................... 3
B. The Jury Instructions ............................................................................. 5
C. The Second Circuit Opinion .................................................................... 6
D. Petition for Rehearing and Motion to Stay the Mandate ...................... 6
REASONS FOR GRANTING THE APPLICATION ................................................... 7
I. MR. SILVER IS NEITHER A FLIGHT RISK NOR THREAT AND THE
EQUITIES FAVOR A STAY ...................................................................................... 9
II. THE CERTIORARI PETITION WILL PRESENT THREE SUBSTANTIAL
QUESTIONS ........................................................................................................ 10
A. There is A Substantial Question Whether Bribery Requires
an Exchange .......................................................................................... 11
B. There Is a Substantial Question Whether Hobbs Act
Extortion Covers Bribery ...................................................................... 18
C. There Is a Substantial Question Whether and When an
Appeals Court Can Engage in a Harmless Error Analysis
If the Government Forfeited the Issue ................................................. 20
CONCLUSION............................................................................................................ 26

i
 INDEX OF APPENDICES

APPENDIX A: Second Circuit Opinion (January 21, 2020)

APPENDIX B: Second Circuit Order Denying Stay (April 1, 2020)

APPENDIX C: Second Circuit Order Denying Rehearing (February 21, 2020)

APPENDIX D: Second Circuit Order Continuing Bail (March 14, 2019)

APPENDIX E: Second Circuit Order Granting Bail (October 3, 2018)

APPENDIX F: District Court Judgment (July 30, 2018)

APPENDIX G: District Court Opinion Denying Bail (September 17, 2018)

ii
 TABLE OF AUTHORITIES

Page(s)
CASES
Arizona v. Fulminante,
499 U.S. 279 (1991) ................................................................................................ 20
Bryant v. Ford Motor Co.,
886 F.2d 1526 (9th Cir. 1989) ................................................................................ 10
Chapman v. California,
386 U.S. 18 (1967) .................................................................................................. 20
Evans v. United States,
504 U.S. 278 (1992) ...................................................................................... 8, 18, 19
Gover v. Perry,
698 F.3d 295 (6th Cir. 2012) .................................................................................. 22
In re PCH Assocs.,
949 F.2d 585 (2d Cir. 1991) .................................................................................... 20
Julian v. United States,
463 U.S. 1308 (1983) ............................................................................................ 1, 7
Kelly v. United States,
139 S. Ct. 2777 (2019) .............................................................................................. 8
Lufkins v. Leapley,
965 F.2d 1477 (8th Cir. 1992) ................................................................................ 23
Maryland v. King,
564 U.S. 1301 (2012) ................................................................................ 1, 7, 10, 19
McCormick v. United States,
500 U.S. 257 (1991) .................................................................................... 11, 14, 15
McDonnell v. United States,
136 S. Ct. 2355 (2016) .....................................................................................passim
McNally v. United States,
483 U.S. 350 (1987) ............................................................................................ 8, 11
Mickens v. Taylor,
243 F.3d 870 (4th Cir. 2001) .................................................................................. 10
Oscasio v. United States,
136 S. Ct. 1423 (2016) ................................................................................ 14, 18, 19
United States v. Brewster,
408 U.S. 501 (1972) .......................................................................................... 11, 15

iii
 TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Dolah,
245 F.3d 98 (2d Cir. 2001) ...................................................................................... 23
United States v. Giovanetti,
928 F.2d 225 (1991) ................................................................................................ 21
United States v. Gonzalez–Flores,
418 F.3d 1093 (9th Cir. 2005) ................................................................................ 23
United States v. Jennings,
160 F.3d 1006 (1998) .............................................................................................. 15
United States v. Mason,
692 F.3d 178 (2d Cir. 2012) .................................................................................... 23
United States v. McManus,
651 F. Supp. 382 (D. Md. 1987) ............................................................................... 9
United States v. Neuroth,
809 F.2d 339 (6th Cir. 1987) .................................................................................. 25
United States v. Pryce,
938 F.2d 1343 (D.C. Cir. 1991) .............................................................................. 22
United States v. Ring,
706 F.3d 460 (D.C. Cir. 2013) .................................................................... 15, 16, 17
United States v. Rose,
104 F.3d 1408 (1st Cir. 1997) ........................................................................... 22, 23
United States v. Rosen,
716 F.3d 691 (2d Cir. 2013) .................................................................................... 11
United States v. Samaniego,
187 F.3d 1222 (10th Cir. 1999) .............................................................................. 22
United States v. Silver,
864 F.3d 102 (2d Cir. 2017) .............................................................................passim
United States v. Taylor,
210 F.3d 311 (5th Cir. 2000) .................................................................................. 24
United States v. Terry,
707 F.3d 607 (6th Cir. 2013) ................................................................ 12, 15, 16, 17
United States v. Whitman,
887 F.3d 1240 (11th Cir. 2018) .............................................................................. 15
United States v. Wright,
665 F.3d 560 (3d Cir. 2012) .................................................................................... 15

iv
 TABLE OF AUTHORITIES
(continued)
Page(s)
Wise v. Lipscomb,
434 U.S. 1329 (1977) ................................................................................................ 7
STATUTES
18 U.S.C. § 3143 ................................................................................................. 1, 2, 7, 9
28 U.S.C. § 2101 ......................................................................................................... 1, 2
OTHER AUTHORITIES
20A Moore’s Federal Practice - Civil § 341.14 ............................................................ 10
Albert W. Alschuler, Criminal Corruption: Why Broad Definitions of
Bribery Make Things Worse, 84 FORDHAM L. REV. 463 (2015) ............................. 16
Fed. R. App. P. 41 .......................................................................................................... 7

v
TO THE HONORABLE RUTH BADER GINSBURG, ASSOCIATE JUSTICE
OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SECOND
CIRCUIT:

Sheldon Silver moves for an emergency recall and stay of the Second Circuit’s

mandate, or in the alternative for release on bail, pending the disposition of his

forthcoming petition for certiorari. On April 1, 2020, the Second Circuit denied Mr.

Silver’s motion to stay the mandate and immediately issued the mandate. Without

relief, Mr. Silver will be resentenced and likely have to report to prison before this

Court rules on his certiorari petition, which will present substantial questions; he

therefore requests expedited consideration of his application.

An individual Justice is authorized to issue a stay “for a reasonable time to

enable the party aggrieved to obtain a writ of certiorari.” 28 U.S.C. § 2101(f). Such

action is proper if there is “(1) a reasonable probability that this Court will grant

certiorari, (2) a fair prospect that the Court will then reverse the decision below, and

(3) a likelihood that irreparable harm [will] result from the denial of a stay.”

Maryland v. King, 564 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers). Similarly,

any judicial officer—including a Circuit Justice—“shall order” release on bail pending

disposition of a certiorari petition, so long as (i) the applicant is not likely to flee or

pose any danger, and (ii) his appeal presents a “substantial question of law” that, if

decided in his favor, is “likely to result in … reversal” or “a new trial.” 18 U.S.C.

§ 3143(b). In applying that standard, Justices have looked to whether there exists “a

reasonable probability that four Justices are likely to vote to grant certiorari.” Julian

v. United States, 463 U.S. 1308 (1983) (Rehnquist, C.J.).

 Whether framed as a stay under 28 U.S.C. § 2101(f) or release on bail under

18 U.S.C. § 3143(b), the legal standard is materially the same: Is there a reasonable

probability of certiorari and do the equities favor maintenance of the status quo until

this Court has an opportunity to consider the certiorari petition?

The answer to both questions is yes. Mr. Silver’s certiorari petition will present

three questions independently warranting this Court’s review. In addition, absent a

stay or release, Mr. Silver will be resentenced and may well complete a substantial

portion of his prison sentence before this Court considers whether some or all of his

convictions were contrary to the law. On the other hand, if this Court grants relief

and then denies review, the Government will not be harmed. Mr. Silver would still

be resentenced and serve his entire sentence. Moreover, he is not a flight risk or a

danger to the public

Mr. Silver was a longtime assemblyman and, for twenty years, Speaker of the

New York State Assembly. According to the Government, Mr. Silver used his law firm

work to exploit his elected position for unlawful personal gain. At trial, Mr. Silver

was convicted of honest-services fraud, Hobbs Act extortion, and money laundering.

On appeal, the Second Circuit overturned some of those convictions. But in affirming

the other convictions, the court raised several vitally important questions, questions

that merit this Court’s attention.

First, the opinion pioneered a novel definition of bribery that eliminates the

key line this Court has drawn between unlawful bribery and lawful (if not always

admirable) actions by state officials that federal criminal law does not reach. Second,

2
by affirming Mr. Silver’s conviction under the Hobbs Act, the opinion conflated

extortion and bribery, an approach Justices of this Court have long questioned. Third,

the panel engaged in a sua sponte harmless error analysis despite the Government

electing not to argue harmless error and Mr. Silver having no opportunity to address

it (and despite the conclusion of a prior panel on an earlier appeal that the same error

was not harmless). These issues will likely attract attention from this Court and there

is at least a fair prospect that the Court would reverse the panel’s holding on one or

more of those questions.

STATEMENT

A. The Government’s Theory.

Sheldon Silver was first elected to the New York State Assembly in 1976. From

then until 2015, he represented much of lower Manhattan. In 1994, he was also

elected Speaker and served in that position until 2015. According to the Government,

Mr. Silver used his law firm work “to exploit his elected position for unlawful personal

gain.” Slip op. 5. In particular, the prosecution emphasized referral fees Mr. Silver

earned when a real estate developer, Glenwood Management, hired the Goldberg law

firm for tax work. Glenwood’s in-house counsel testified that Glenwood did not retain

Goldberg in order to get any official action from Mr. Silver, and that Mr. Silver never

“communicate[d] in any way” that he would take official action in return for using the

Goldberg firm. JA 870. The Government nonetheless alleged that Glenwood’s use of

Goldberg was a quid for two official acts.

3
 One alleged “official act” was “influence on provisions of the Rent Act of 2011.”

Slip op. at 47. Glenwood’s lobbyist met with Mr. Silver in June 2011 to suggest

changes to ensure the bill’s passage, at a time when “both [the lobbyist] and the

leadership of Glenwood were unaware ... that Silver received referral fees from” the

law firm. Id. at 46. The lobbyist testified that Mr. Silver’s response was

“noncommittal,” and that the bill as passed differed from Glenwood’s proposal and

contained provisions that were “not what Glenwood wanted.” JA 727, 872-73.

The second “official act” involved the Public Authorities Control Board (PACB).

That board approved financing for tax-exempt bonds, which Glenwood depended on.

Slip op. at 48. Mr. Silver had a seat on the board, but approvals for the type of

financing Glenwood relied on were “typically pro forma”—the Second Circuit

previously termed them “perfunctory”—and Mr. Silver sent a designee to meetings.

United States v. Silver, 864 F.3d 102, 109 n.18 (2d Cir. 2017) (Silver I); JA-921.1 There

was no testimony that Mr. Silver and Glenwood ever discussed PACB approvals.

The Government charged Mr. Silver with two counts of honest services fraud,

one count of Hobbs Act extortion, and one count of money laundering.

1 The Witkoff Group, which also hired Goldberg, is irrelevant because it did not
learn of Silver’s fees until 2014 and no “official acts” were tied to Witkoff ’s fees. See
slip op. 50. Mr. Witkoff also testified that Witkoff did not use Goldberg “in order to
get Mr. Silver to take some official action” or “in anticipation of” any such action. JA-
803.

4
 B. The Jury Instructions.

Mr. Silver sought to argue that there was never any quid pro quo agreement,

but the court told the jury it could convict even if Glenwood made referrals without

intending to obtain “official acts” in return.

In particular, the honest-services charge not only failed to require an exchange,

but instructed the jury that “the Government only has to prove that Mr. Silver—not

the alleged bribe giver—understood that, as a result of the bribe, he was expected to

exercise official influence or take official action.” SA-30.

The Hobbs Act instruction, though convoluted, likewise departed from an

exchange requirement, stating that the quid pro quo element was satisfied if the

payors gave Mr. Silver property “because of Mr. Silver’s official position” (rather than

in exchange for “official acts”). SA-32. When the court subsequently referred to an

exchange, it said that requirement was satisfied unless the property was provided for

reasons entirely “unrelated to Mr. Silver’s public office.” SA-32-33. The court added

that it was enough if the developers wished to procure “official influence or decision

making.” SA-33.

If the jury had any doubt about what the instructions meant, the Government

dispelled it in summation: “[T]he only question for you, ladies and gentlemen, is if

any part of Sheldon Silver’s motivation in taking these official actions was because of

the money.” SA-53. The jury convicted Mr. Silver on all counts.

5
 C. The Second Circuit Opinion.

The Second Circuit ordered a judgment of acquittal on three counts that are

not at issue, but upheld Mr. Silver’s convictions based on the “real estate scheme.”

The court rejected Mr. Silver’s first argument that the jury instructions had

erroneously omitted the required “agreement” element. Slip op. 9-21. For honest

services fraud, the court held, “the Government has met its burden” if it shows the

official “understood [the payment] to be a payment in exchange for official influence

on some specific, focused, and concrete matter involving the formal exercise of

governmental power.” Id. at 84 (emphasis added). Likewise, by approving the Hobbs

Act jury instructions, the Second Circuit effectively held that only the official’s

motivation matters—an exchange is not required.2

The Second Circuit next held that the jury instructions were erroneous under

McDonnell, because they did not tie “official action” to a “specific and focused question

or matter.” Id. at 61. But the court found that error harmless as to the “real estate

scheme.” Id. at 69.

D. Petition for Rehearing and Motion to Stay the Mandate.

Mr. Silver petitioned for rehearing and rehearing en banc. Dkt. No. 135 (Feb.

4, 2020). After that petition was denied, Mr. Silver moved to stay the mandate

pending disposition of Mr. Silver’s forthcoming certiorari petition. Dkt. No. 140

2 At times, the Second Circuit suggested that for extortion the official must
convey this understanding to the bribe payor. E.g., slip op. 13. But that is not what
the jury instructions said: they required at most that the benefit be provided “because
of Mr. Silver’s official position,” SA-32—which describes lawful efforts to curry favor.

6
(February 27, 2020). Mr. Silver’s motion identified the same substantial questions as

this application. The panel denied that motion on April 1, 2020 and immediately

issued the mandate even though under the normal course, the mandate should not

have issued for seven days following the denial of Mr. Silver’s motion. Dkt. Nos. 153,

154; see Fed. R. App. P. 41(b) (“The court’s mandate must issue … 7 days after entry

of an order denying a … motion for stay of mandate ….”).

REASONS FOR GRANTING THE APPLICATION

A motion to stay the mandate pending a certiorari petition is appropriate if

there is a “reasonable probability” of certiorari, a “fair prospect” of reversal, and a

“likelihood” of irreparable harm. King, 564 U.S. 1301; see also Wise v. Lipscomb, 434

U.S. 1329, 1333-34 (1977) (Powell, J., in chambers). Justices will also grant release,

under 18 U.S.C. § 3143(b), if there is “a reasonable probability that four Justices are

likely to vote to grant certiorari,” Julian, 463 U.S. at 1308, and the applicant is

neither a flight risk nor a public threat.

Under either standard, Mr. Silver is entitled to relief. For starters, there is no

dispute that he is not a flight risk or threat to public safety. Dist. Ct. Op. 5-6 (Sept.

17, 2018). Nor can there be any doubt that “irreparable harm” would result without

relief: If Mr. Silver, who is in his late 70s, is resentenced immediately, he will likely

be required to report to prison in short order, meaning that he would potentially be

in dangerous proximity to other individuals during a pandemic, and the time spent

in prison will be irrecoverable if this Court later invalidates his conviction. On the

7
other hand, if this Court grants a stay and denies review or affirms the Second Circuit,

Mr. Silver will serve out his sentence in due course.

The only real questions, then, are whether there is a “reasonable probability”

that this Court will grant certiorari and a “fair prospect” the Court will reverse. The

answer to both questions is “yes” for three reasons.

First, the Second Circuit’s novel holding on bribery—eviscerating the dividing

line between normal politics and bribery—is unprecedented and conflicts with

decisions of this Court and other circuits. Because this Court continues to actively

police this area of law to prevent federal prosecutors from using vague federal

criminal laws to impose standards of “good government for local and state officials,”

there is at least a fair possibility the Court will side with Mr. Silver. McNally v.

United States, 483 U.S. 350, 360 (1987); see also McDonnell v. United States, 136 S. Ct.

2355 (2016); Kelly v. United States, 139 S. Ct. 2777 (2019).

Second, the court of appeals conflated Hobbs Act extortion with simple bribery.

While that was required under this Court’s precedent, Evans v. United States, 504

U.S. 278 (1992), two current Justices (and more former Justices) have expressed

doubt that Hobbs Act extortion covers simple bribery. Because this case presents the

current Court with the chance to reexamine that important question, there is a

reasonable probability that the Court will do so. And there is a fair prospect at

reversal. When Congress enacted the Hobbs Act, it adopted the meaning of common-

law extortion. Id. at 278 (Thomas, J., dissenting). And common-law extortion did not

include simple bribery. Id.

8
 Third, the Second Circuit stands alone in conducting sua sponte harmless error

analysis without asking first whether it was appropriate to engage in that analysis—

and make necessarily intricate factual determinations—when the Government

forfeited the issue and Mr. Silver accordingly had no opportunity to argue the

relevant factual details. The court of appeals nonetheless forgave that failure by

doing the Government’s work for it. In nearly every other circuit, however, the

Government’s forfeiture would have ended the case because those courts do not

engage in sua sponte harmless-error review when the record is complex and

harmlessness is debatable. This Court is likely to grant certiorari to resolve that split,

and the Court is likely to adopt Mr. Silver’s position.

I. MR. SILVER IS NEITHER A FLIGHT RISK NOR THREAT AND THE EQUITIES
FAVOR A STAY.

Mr. Silver is not a flight risk or a danger to the community, Dist. Ct. Op. 5-6

(Sept. 17, 2018), so the threshold requirements for release under § 3143(b) are plainly

satisfied. In addition, absent a stay the parties and district court will have to engage

in resentencing, efforts that may well be for naught if the Supreme Court agrees with

Mr. Silver. If Mr. Silver is resentenced before the Court grants review, then Mr. Silver

will likely have to report to prison, potentially losing months of freedom before the

Court decides the case—and will have to do so at a time when prisons present

heightened dangers of coronavirus exposure for individuals of Mr. Silver’s age. That

would be unjust. See United States v. McManus, 651 F. Supp. 382, 383-84 (D. Md.

1987) (“There seems little point to an appeal if the defendant will serve his time before

a decision is rendered.”). Mr. Silver should not be imprisoned “before he has a fair

9
opportunity to seek Supreme Court review.” Mickens v. Taylor, 243 F.3d 870, 871 (4th

Cir. 2001) (Michael, J., joined by Motz & King, JJ., dissenting from denial of stay).

Finally, if this Court grants a stay and then denies review, there is no harm done. If

Mr. Silver is due to serve time in prison, whether he serves it starting now or in a few

months is immaterial. The equities thus favor preserving the status quo.3

II. THE CERTIORARI PETITION WILL PRESENT THREE SUBSTANTIAL QUESTIONS.

The “substantial question” standard is not onerous. It does not require courts

to find “exceptional circumstances,” or even to conclude that the applicant is likely to

succeed on the merits. Bryant v. Ford Motor Co., 886 F.2d 1526, 1528–29 (9th Cir.

1989). Instead, “the applicant must show a reasonable probability that four justices

will vote to grant certiorari and a reasonable possibility or ‘fair prospect’ that five

justices will vote to reverse the circuit court’s judgment.” 20A Moore’s Federal

Practice - Civil § 341.14[2]; see also King, 561 U.S. at 1301. Mr. Silver easily meets

this low standard.

3 In its opinion declining to stay the mandate, the Second Circuit opined that
“none of the questions Silver intends to raise address his conviction under Count 7s
for money laundering, making it all but certain that he would serve at least some
time in prison even in the unlikely event that he were to succeed before the Supreme
Court on the other counts of conviction.” Dkt. 150, at 11. That is incorrect. The money-
laundering charge, as the Second Circuit recognized on Mr. Silver’s first appeal (864
F.3d at 124), is derivative of the extortion and fraud charges, so it necessarily fails if
he is right on any of the questions presented to this Court.

10
 A. There is A Substantial Question Whether Bribery Requires an
Exchange.

Mr. Silver’s petition will present the substantial question whether bribery

requires an exchange rather than being satisfied by the official’s unexpressed

unilateral intent. The panel opinion effectively held that an official commits bribery

(in violation of both the honest-services fraud statutes and the Hobbs Act) any time

he secretly believes he was given a gift to perform an official act. Decisions of this

Court and other courts of appeals support Mr. Silver’s position that bribery requires

an agreed exchange, not mere unilateral understanding on the official’s part. Those

decisions make this a paradigmatic substantial question.

1. This Court, warning against using vague federal criminal laws to impose

standards of “good government for local and state officials,” McNally v. United States,

483 U.S. 350, 360 (1987), has strictly limited federal bribery law to “quid pro quo

corruption—the exchange of a thing of value for an ‘official act,’” McDonnell v. United

States, 136 S. Ct. 2355, 2372 (2016) (emphasis added). The provision of benefits to an

official to curry favor is therefore lawful—both to give and to receive—unless made

in exchange for official action.

Countless cases therefore describe bribery as requiring an implicit or explicit

“agreement” or “promise” to undertake an official action in exchange for the benefit.

E.g., United States v. Brewster, 408 U.S. 501, 526 (1972). This holds under both the

Hobbs Act, see McCormick v. United States, 500 U.S. 257, 272 (1991), and honest-

services fraud, see United States v. Rosen, 716 F.3d 691, 701 (2d Cir. 2013). “[A]n

11
agreement is the key component of a bribe.” United States v. Terry, 707 F.3d 607, 614

(6th Cir. 2013) (Sutton, J.).

Indeed, the bribery-without-a-bribe view is so novel that it contradicts even

the Government’s own requested jury charges in other bribery prosecutions. In

United States v. Percoco, for instance, the Government’s Hobbs Act charge request

expressly focused on the payor’s motivation for the alleged bribe: “The Government’s

burden is to prove that the promise or performance of official action was at least part

of the motivation for the extorted party to give over the property.” Government’s

Requests To Charge 22, United States v. Percoco, No. 1:16-cr-0776-VEC (S.D.N.Y. Dec.

8, 2017), ECF No. 379 (emphasis added). Similarly, in United States v. Skelos, the

Government requested an honest services fraud instruction that likewise focused on

whether the alleged payment was provided in exchange for official action: “the

Government must prove that the thing of value was provided, at least in part, in

exchange for the promise or performance of Dean Skelos’s official actions.”

Government’s Proposed Jury Instructions 26, United States v. Skelos, No. 1:15-cr-

0317-KMW (S.D.N.Y. June 8, 2018), ECF No. 339-1 (emphasis added).

Without an exchange requirement, federal prosecutors would be free to use

bribery charges to “se[t] standards of good government for local and state officials.”

McDonnell, 136 S. Ct. at 2373. Eliminating an exchange requirement would also cast

a “pall of potential prosecution” over all officials, id. at 2372, given the ease of alleging

that any benefit provided to an official by lobbyists or others was received with by the

official with improper intent.

12
 The court of appeals in this case, however, rejected the core exchange

requirement, and held that it is enough if the jury finds the official unilaterally

“understood [a payment] to be a payment in exchange for official influence on some

specific … matter involving the formal exercise of governmental power.” Slip op. 84.

This transformation of bribery from a crime of exchange to one of unilateral thoughts

erases this Court’s key distinction between lawful and criminal conduct. The

councilman who votes for a pro-business resolution after the Chamber of Commerce

takes him to a ballgame, or the mayor who hires a friend after receiving a birthday

present from her, would be subject to indictment if a federal prosecutor suspected the

official drew a connection, solely in her own mind, between the benefit and the official

action. And imprisonment would turn on a jury’s after-the-fact speculation about the

official’s unexpressed state of mind—allowing a jury to convict based on unethical,

but non-criminal conduct. Those are precisely the outcomes this Court has worked so

hard to avoid. Id. at 2372-73 (courts do not “construe a criminal statute on the

assumption that the Government will use it responsibly”).

The Second Circuit’s erroneous decision derived in part from a misreading of

Mr. Silver’s argument as contending that that there must be a “meeting of the minds”

between the payor and the official. E.g., slip op. 9. Mr. Silver expressly disclaimed

any such argument. Reply Br. 9 (2d Cir.) (“Bribery does not require a subjective

‘meeting of the minds.’”). But in rejecting this strawman, the panel failed to address

what the law does require, which is an agreed exchange of a payment for actual or

promised official action. Whether one calls it a promise, an agreement, or an

13
understanding, there must be a tit for tat. McCormick, 500 U.S. at 273. That is the

essence of bribery.

For the same reason, the Second Circuit missed the point in saying that Mr.

Silver’s purported “argument that a quid pro quo requires a meeting of the minds”

contradicts the “distinction drawn in Ocasio [v. United States, 136 S. Ct. 1423 (2016)]”

between conspiracy (which requires a meeting of the minds) and extortion under color

of right (which does not). Slip op. 16. That distinction is precisely the point: bribery

does not require a meeting of the minds, but does require an agreed exchange.

Ocasio’s example illustrates: “[I]magine that a health inspector demands a bribe from

a restaurant owner . . . If the owner reluctantly pays the bribe in order to keep the

business open, the owner has ‘consented’ to the inspector’s demand, but this mere

acquiescence in the demand does not form a conspiracy.” 136 S. Ct. at 1436. The

owner and inspector do not share the same subjective intent, but they have objectively

agreed to an exchange of the bribe for the inspector’s agreement not to carry out his

threat.

In rejecting Mr. Silver’s motion to stay the mandate, the Second Circuit again

misconstrued Mr. Silver’s argument, saying that he was arguing for a “meeting of the

minds” requirement. Dkt. 150, at 3. But Mr. Silver has never argued that both sides

must have criminal intent. One side can be an informant, one side can secretly intend

not to follow through with the bribe. To count as bribery, however, there must be an

objective, agreed-upon exchange. Here, there was no agreed-upon exchange and

neither the Government nor the Second Circuit has ever said what the supposed

14
agreement was. For that reason, there is no merit in the court’s suggestion that Mr.

Silver has taken “cribbed quotations” “out of context” from other cases. Those cases—

including this Court’s opinions in Brewster, 408 U.S. at 526, and McCormick, 500 U.S.

at 272—make clear that an objective, agreed-upon exchange is required for a bribery

conviction.

2. Numerous federal appellate court decisions support Mr. Silver’s position

as well.

In United States v. Jennings, 160 F.3d 1006 (1998), the Fourth Circuit held

that a bribery instruction using “intent to influence” language without including a

quid pro quo requirement was not just erroneous, but plainly so. Id. at 1021. The

instructions failed to alert the jury that it must find the defendant “ha[d] given

money … in exchange for some specific official act or course of action.” Id. at 1022

(emphasis added). As a result, the instruction mistakenly conveyed the impression

that the law “prohibits any payment made with a generalized desire to influence or

reward (such as a goodwill gift), no matter how indefinite or uncertain the payor’s

hope of future benefit.” Id. at 1020.

The decision below is also in tension with the decisions of numerous courts of

appeals holding that bribery requires the government to prove an agreement. See,

e.g., United States v. Wright, 665 F.3d 560, 567-568 (3d Cir. 2012); Terry, 707 F.3d at

614; United States v. Whitman, 887 F.3d 1240, 1247 (11th Cir. 2018); United States

v. Ring, 706 F.3d 460 (D.C. Cir. 2013).

For example, in Terry, the Sixth Circuit held that there is a “statutory

15
requirement” that “the payments were made in connection with an agreement, which

is to say ‘in return for’ official actions under it.” 707 F.3d at 612. “What is needed is

an agreement, full stop, which can be formal or informal, written or oral.” Id. The

conviction at issue was valid because the jury instructions “accurately conveyed that

an agreement is the key component of a bribe” by requiring a finding that the

defendant “agreed ‘to accept [a] thing of value in exchange for official action.’ ” Id. at

614.

Likewise in Ring, the D.C. Circuit explained that the “requirement” for bribery

is that “the payor defendant must at least intend to offer … [a corrupt] exchange.”

706 F.3d at 468 (emphasis altered). “To be sure,” the court wrote, “bribing

congressmen is illegal, but gifts given by lobbyists to curry political favor do not

always amount to bribes.” Id. at 464. And though “[t]he distinction between legal

lobbying and criminal conduct may be subtle,” the difference is key: a defendant

commits bribery “when [a] gift is given with an ‘intent “to influence” an official act’

by way of a corrupt exchange.” Id. (emphasis added); see also Albert W. Alschuler,

Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse, 84

FORDHAM L. REV. 463, 481 (2015) (“[F]avoritism following the receipt of a benefit is

not bribery . . . . The circumstances must warrant an inference that, at the time the

official accepted one or more of the benefits . . . , he agreed at least implicitly to provide

something in return.”).

In its opinion denying Mr. Silver’s motion for a stay, the Second Circuit wrote

that at least some of these appellate cases are “distinguishable from Silver’s case”

16
and “consistent with the Opinion.” Dkt. 151, at 7 (citing Terry, 707 F.3d at 614, and

Ring, 70 F.3d at 468). That is not so. The appellate cases Mr. Silver identified

establish that most circuits follow this Court’s lead in requiring an objective exchange.

That is particularly true of the cases the panel singled out. Terry explained that “an

agreement is the key component of a bribe.” 707 F.3d at 614. Indeed, in that case the

bribe payor “straight up asked [the defendant judge] to deny the bank’s motions for

summary judgment in the two cases, and with [the judge’s] tape-recorded reply (‘Got

it.’), [the judge] agreed to do just that.” Id. at 615.

Ring too required an exchange. 706 F.3d at 468. The Second Circuit

highlighted the D.C. Circuit’s explanation that “‘agreement’ is used as a synonym for

specific intent.” Dkt. 150, at 7 (quoting Ring, 706 F.3d at 468). That is true—the

agreement is what shows the official had the requisite specific intent. In fact, the very

next sentence of the D.C. Circuit’s opinion stated: “When … a public official is charged

with soliciting a bribe, the evidence must show that the official conveyed an intent to

perform official acts in exchange for personal benefit.” Ring, 706 F.3d at 468

(emphasis added). The Second Circuit here, by contrast, blessed jury instructions that

allowed conviction based on unilateral intent that was never conveyed. The panel

thus contradicted the D.C. Circuit (and a number of other courts of appeals).

The decisions of this Court and numerous courts of appeals support Mr. Silver’s

argument that an agreed upon exchange is required for a bribery conviction. If that

understanding is ultimately correct, acquittal (or, at the very least, a new trial) is

required. This Court is thus likely to weigh in, reaffirm that an agreed exchange that

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is the sine qua non of bribery, and reject the notion that unilateral understanding

suffices.

B. There Is a Substantial Question Whether Hobbs Act Extortion

Covers Bribery.

Mr. Silver’s petition for certiorari will also present the substantial question

whether a bribery theory can suffice for Hobbs Act extortion. The court of appeals

was bound by precedent on that question. See Evans, 504 U.S. at 268. But Mr. Silver

preserved his argument that voluntary payment of a bribe is not within the meaning

of “extortion” under the Hobbs Act, and such extortion occurs only when the victim is

actually extorted—as when an official obtains property “under the pretense that the

officer [is] entitled thereto by virtue of his office.” Ocasio, 136 S. Ct. at 1438 (Thomas,

J., dissenting) (emphasis added); see also Op. Br. 28 n.5 (2d Cir.).

In Evans, this Court held that Hobbs Act extortion extends to bribery. The

defendant was an elected official who had passively accepted cash payments,

including a check to his campaign, in return for favorable official action. 504 U.S. at

257. In deciding whether the defendant need have “induced” payment under Hobbs

Act extortion the Court “assume[d] that the jury found that [the defendant] accepted

the cash knowing that it was intended to ensure [his favorable vote] ... his acceptance

of the bribe constituted an implicit promise to use his official position to serve the

interests of the bribegiver.” Id. The Court determined that the defendant could

commit extortion by passively accepting bribes—he need not have “induced” or

otherwise demanded payment because “the coercive element [of extortion under color

of official right] is provided by the public office itself.” Id. at 267.

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 Three justices dissented. Justice Thomas explained that when Congress

enacted the Hobbs Act, it adopted the meaning of common-law extortion.” Id. at 278

(Thomas, J., dissenting). And that common-law crime did not include simple bribery.

Instead, “[a]t common law it was essential that the money or property be obtained

under color of office, that is, under the pretense that the officer was entitled thereto

by virtue of his office. The money or thing received must have been claimed or

accepted in right of office, and the person paying must have yielded to official

authority.” Id. at 279. Nineteenth- and early twentieth-century cases involving state

extortion statutes made “plain that the offense was understood to involve not merely

a wrongful taking by a public official, but a wrongful taking under a false pretense of

official right.” Id. at 281-82. When an official takes a bribe, the wrong is to the state,

but not to the bribe-payor. Because of that, bribery is not punishable as extortion. For

extortion, “[p]rivate and public wrong must concur.” Id. And more recently, Justice

Breyer opined that Evans “may well have been wrongly decided.” Ocasio, 136 S. Ct.

at 1437 (Breyer, J., concurring).

In denying Mr. Silver’s motion for a stay, the Second Circuit wrote that Mr.

Silver had not shown “that four justices will vote to grant certiorari.” Dkt. 150, at 8.

But Mr. Silver does not have to show that there are, in fact, four current Justices that

agree with him. See King, 564 U.S. at 1301. (That said, over time, three Justices have

agreed with Mr. Silver and a fourth has suggested that he agrees as well). Mr. Silver

only has to show a reasonable probability that four Justices will vote to consider the

question. Given that members of the Supreme Court have written (and continue to

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write) on this question, that only one member of the current Court has considered the

question (and agreed with Mr. Silver), and that Congress codified the common law

definition of extortion when it enacted the Hobbs Act, there is a reasonable

probability that the Court will grant Mr. Silver’s petition and reverse the panel.

C. There Is a Substantial Question Whether and When an Appeals

Court Can Engage in a Harmless Error Analysis If the
Government Forfeited the Issue.

The Second Circuit’s opinion opens another split among the circuits. This Court

has repeatedly stated that the government bears the burden of demonstrating on

appeal that an error was harmless. See, e.g., Arizona v. Fulminante, 499 U.S. 279

(1991); Chapman v. California, 386 U.S. 18, 26 (1967). Based on that rule, nearly

every circuit has held that when the Government does not argue harmless error, it is

rarely appropriate for the appeals court to engage in that analysis. Here, the

Government never argued harmless error on the McDonnell issue or money

laundering—even as it did argue harmless error on other issues—thereby effectively

conceding that harmless error was inapplicable.4 The court of appeals nonetheless

undertook that analysis without any briefing, and without notice to Mr. Silver. And

the court offered no justification for relieving the government of its burden. That

conflicts with decisions from a number of circuits.

4 The likely reason the Government failed to argue harmlessness was that the
Second Circuit’s opinion regarding Mr. Silver’s initial conviction held, on materially
identical facts, that the McDonnell error could not be deemed harmless. 864 F.3d at
123. No one expected the second panel to violate the law of the case. See In re PCH
Assocs., 949 F.2d 585, 592 (2d Cir. 1991).

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 In United States v. Giovanetti, 928 F.2d 225 (1991), the Seventh Circuit held

that because the government had not argued harmless error, the court would not

engage in that analysis. After the court reversed the defendant’s conviction, the

government petitioned for rehearing, asking the court to apply harmless error

analysis. The court found that request “troublesome in two respects.” Id. at 226. It

would foremost “place a heavy burden on the reviewing court, deprived as it would be

of the guidance of the parties on the question whether particular errors were

harmless.” Id. Second, “it would invite salami tactics.” Id. The government would be

allowed to argue no error on appeal “hoping to get [the court] to endorse its view of

the law.” Id. Then if the government failed, it would be able to file a rehearing petition

to get another bite at the apple. “Such tactics would be particularly questionable in a

case such as this where the defendant goes out of his way to argue that the error of

which he complains was prejudicial, and the government by not responding signals

its acquiescence that if there was error, it indeed was prejudicial.” Id.

To be sure, the court concluded it had discretion to nevertheless “overlook a

failure to argue harmlessness.” Id. at 227. But the court would only exercise that

discretion after considering “the length and complexity of the record, whether the

harmlessness of the error or errors found is certain or debatable, and whether a

reversal will result in protracted, costly, and ultimately futile proceedings in the

district court.” Id. Applying that standard, the court “decline[d] to relieve the

government from the consequences of its failure to raise the issue of harmless error

in its brief on appeal.” Id.

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 The Seventh Circuit’s test has been adopted (with some modifications) by

nearly every court. For example, the Tenth Circuit declined to absolve the

government’s failure to argue harmless error in United States v. Samaniego, 187 F.3d

1222, 1225 (10th Cir. 1999). Applying the same factors as the Seventh Circuit, the

court explained, “An unsolicited, unassisted, and undirected harmless-error review

of an incomplete record to search for and evaluate independent evidence to support

Samaniego’s thirty-one separate convictions would be lengthy, complex, and

dangerous.” Id.

In United States v. Pryce, 938 F.2d 1343 (D.C. Cir. 1991), a divided panel

concluded that an appellate court may undertake an unbriefed harmless error

analysis, but only when the “relevant portions of the record are reasonably short and

straightforward.” Id. at 1348 (opinion of Williams, J., announcing the judgment of the

panel). The lead opinion, however, cautioned that when an appellate court conducts

a review of the record on its own initiative, it should err on the side of the criminal

defendant. Id. at 1348. And dissenting, Judge Silberman wrote that he would never

relieve the government’s failure to raise harmlessness. “The government’s failure (or

refusal for reasons not apparent) to argue harmless error puts the judiciary’s

neutrality at issue because another related tenet of our system of justice is that we

recognize an adversary system as the proper method of determining guilt.” Id. at 1353

(Silberman, J., dissenting).

Other circuits likewise engage in a test akin to the Seventh Circuit’s. See Gover

v. Perry, 698 F.3d 295, 301 (6th Cir. 2012); United States v. Rose, 104 F.3d 1408, 1415

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(1st Cir. 1997) (“While we find helpful the reasoning of the Seventh Circuit, we do not

restrict ourselves to the Giovannetti test [because] [t]he exercise of discretion involves

the balancing of many elements.”); Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir.

1992); United States v. Gonzalez–Flores, 418 F.3d 1093, 1100 (9th Cir. 2005).

Notably absent from that list is the Second Circuit. In denying Mr. Silver’s

motion for a stay, the panel claimed that the Second Circuit does follow the approach

of other circuits. Dkt. 150, at 9. But the Second Circuit’s sole statement on the issue

has been: “We have discretion to consider the harmlessness of an alleged error even

though the Government has not argued this line of defense.” United States v. Dolah,

245 F.3d 98, 107 (2d Cir. 2001), abrogated on other grounds by Crawford v.

Washington, 541 U.S. 36, 64 (2004); see also United States v. Mason, 692 F.3d 178,

184 (2d Cir. 2012) (same). The Second Circuit has never held that its discretion is

cabined in this area. And this case proves the point. The panel did not engage in any

analysis of whether it should perform an unasked-for harmless error analysis. Given

this split in authority, the Supreme Court is likely to review this question.

The High Court is also likely to reverse on this issue. As the majority of circuits

hold, engaging in sua sponte harmless error analysis is not appropriate in complex

cases where the issue is debatable. This case illustrates the problem in spades. The

record is thousands of pages recounting days of testimony and myriad exhibits.

Moreover, the Government has tried Mr. Silver twice and twice the Second Circuit

found McDonnell error and engaged in harmless-error analysis. The first panel, on

materially identical facts, held that the error could not be deemed harmless. Silver I,

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864 F.3d at 123. The second panel came to a diametrically opposed conclusion. At the

very least, this disagreement proves that harmlessness is debatable, meaning the

second panel should not have taken it upon itself to conduct the analysis.

The second panel’s analysis also displayed why a court should not spring a

harmless-error analysis on the defendant. Had Mr. Silver had a chance to brief the

issue, he would have shown that the jury could only have convicted him by

disbelieving the testimony of the Government’s own developer-witnesses that there

was no connection between the business sent to Goldberg and official acts by Silver.

That testimony included:

 When Glenwood’s lobbyist met with Mr. Silver, Mr. Silver was
“noncommittal”—he did not promise anything—and the Rent Bill as
passed differed from what Glenwood wanted. JA-727, 872-73.

 Glenwood witnesses testified that Mr. Silver never “communicate[d] in

any way” that he would take action in return for their using the
Goldberg firm (and never threatened adverse action if they didn’t), and
Glenwood did not retain Goldberg in order to get official action from Mr.
Silver. JA-870.

 Mr. Silver “generally vote[d] against Glenwood’s interests,” “[a]lmost

without exception.” JA-874.

 Witkoff witnesses testified they didn’t use Goldberg “in order to get Mr.
Silver to take some official action,” or “in anticipation of Mr. Silver
taking some official action in favor of the Witkoff Group.” JA-803.

A court cannot address harmless error without considering evidence that at

least arguably supports acquittal. And a conclusion of harmless error can rarely, if

ever, be based on the assumption that the jury would disbelieve or disregard express

witness testimony. See United States v. Taylor, 210 F.3d 311, 315-16 (5th Cir. 2000)

(finding non-harmless error in the admission of a chart that showed that the

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defendant supplied cocaine to persons who had testified to the contrary); United

States v. Neuroth, 809 F.2d 339, 346 (6th Cir. 1987) (Ryan, J., dissenting) (“[T]he

Court’s conclusion that the instructional error was harmless because the jury must

have disbelieved the defendant’s alibi is unjustified.”). The panel’s money-laundering

holding—also premised on harmless error—is similarly flawed.5

The Government never argued harmless error. In practically any other circuit,

that would have been fatal in this case. The Supreme Court is thus likely to weigh in.

And because the panel’s analysis is wrong, the Court is likely to reverse.

Finally, the Second Circuit now insists that Supreme Court review is unlikely

“because the Opinion is predicated upon the rare factual scenario presented by

Silver’s case.” Dkt. 150, at 10. There is nothing rare about a politician accepting

donations and gifts and later acting to benefit those contributors. What is rare is

sending the politician to jail when he never agreed to take action in return for the

gifts. In any event, none of Mr. Silver’s questions turns on the particular facts of the

case. Whether a public official can be convicted of bribery based merely on his

unilateral, unexpressed belief that he was accepting a bribe is a purely legal question.

5 Here, too, the Government did not argue harmless error, affording Silver no
opportunity to brief the issue. But it is not clear the jury would have convicted if it
knew Mr. Silver’s post-2008 referral fees derived from lawful conduct. Space does not
permit a full explanation, but at minimum (1) the jury would not necessarily have
found the pre-2008 conduct unlawful; Dr. Taub testified that he sent cases to Mr.
Silver for access, not in exchange for official acts, Op. Br. 10-12; and (2) the jury’s
finding that Mr. Silver “knowingly” moved funds derived from unlawful activity
might well have been different if it had understood—in light of the acquitted counts—
that only funds received years earlier resulted from even arguably unlawful activity.

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Whether Hobbs Act extortion covers simple bribery is a purely legal question. And

whether an appeals court can engage in sua sponte harmless-error analysis in a

complex case where harmlessness is in doubt is a purely legal question. The supposed

“rare factual scenario” here is thus no barrier to this Court’s review.

CONCLUSION

Mr. Silver respectfully requests that this Court recall and stay the mandate,

or grant release on bail, pending disposition of a timely certiorari petition. He also

requests a brief administrative stay pending resolution of this application.

April 2, 2020 Respectfully submitted,

/s/ Meir Feder

Meir Feder
Counsel of Record
James Loonam
JONES DAY
250 Vesey Street
New York, NY 10281
Telephone: 212-326-3939
[email protected]

Andrew J. M. Bentz
JONES DAY
51 Louisiana Avenue N.W.
Washington, DC 20001-2113
Telephone: 202-879-3939
[email protected]

Counsel for Applicant

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