United States v. Silver

103 F.Supp.3d 370

UNITED STATES of America,

v.Sheldon SILVER, Defendant.

No. 15–CR–93 VEC.

United States District Court, S.D. New York.

Signed April 10, 2015.

Andrew Daniel Goldstein, Carrie Heather Cohen, Howard Seth Master, U.S. Attorney's Office, New York, NY, James M. McDonald, U.S. DOJ, New York, NY, for United States of America.

Joel Cohen, Stroock & Stroock & Lavan LLP, Joel Barry Rudin, Law Offices of Joel B. Rudin, Justin Vaun Shur, Steven Francis Molo, Robert Kelsey Kry, Molo Lamken LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, District Judge:

The Court starts with several inarguable principles. First, criminal defendants are entitled to a fair trial. Second, the public has a right to know about criminal prosecutions, perhaps particularly those involving charges of public corruption. Third, criminal cases should be tried in the courtroom and not in the press. Finally, people who venture close to the edge of a rule risk falling over the edge. The rules that govern public statements by federal prosecutors regarding accused defendants are designed to balance the first three principles, with a heavy thumb on the side of defendants' fair trial rights. In this case, the U.S. Attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct,¹strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge to the Defendant's prejudice.

Although the Court does not condone the Government's brinksmanship relative to the Defendant's fair trial rights or the media blitz orchestrated by the U.S. Attorney's Office in the days following Mr. Silver's arrest, for the reasons stated below, the Defendant's Motion to Dismiss the Indictment based on allegedly improper and prejudicial extrajudicial statements by the U.S. Attorney (the “Motion”) is DENIED.²

BACKGROUND

On January 21, 2015, the Government filed a 35–page, single-spaced, sealed Complaint before Chief Magistrate Judge Maas, charging Defendant Silver, the then-Speaker of the New York Assembly, with honest services fraud, conspiracy and extortion. Dkt. 1. Finding probable cause, Magistrate Judge Maas issued an arrest warrant. Dkt. 2. In the weeks prior to the issuance of the arrest warrant, there had been numerous newspaper articles reporting on the U.S. Attorney's investigation, including lengthy investigative journalism pieces on Silver's relationship with Weitz & Luxenberg and with Goldberg & Iryami. ³

Shortly after midnight on January 22, 2015, although the Government's Complaint had not yet been unsealed, the press began reporting that that Silver would be arrested imminently along with the substance of the charges against him. Mot. at 3 (citing Def. Exs. 7–13).

Pursuant to an arrangement between Silver's attorneys and the U.S. Attorney's Office, on the morning of January 22, 2015, Silver surrendered to federal authorities at the Jacob J. Javits Federal Building, where he was processed and then driven in an unmarked car to the basement of the federal courthouse. Government's Memorandum in Opposition to the Defendant's Motion to Dismiss (“Gov't Opp.”) at 4–5. Silver was presented to Magistrate Judge Maas and granted bail. Dkt. 6. Upon leaving the courthouse, Silver issued a short statement to the press. Gov't Opp. at 5.

Later that day, the U.S. Attorney for the Southern District of New York and the FBI Special Agent–in–Charge held a press conference, during which the U.S. Attorney described the substance of the Government's charges against Silver, while also criticizing the “the show-me-the-money culture of Albany.” Unofficial Transcript of U.S. Attorney's Press Conference, Jan. 22, 2015 (Def. Ex. 1) at 1. During the press conference, the U.S. Attorney dutifully noted that the charges at that point were only allegations. See, e.g., id.at 2 (“The central allegation in this case is that Speaker Silver successfully sought ways to monetize his public office and that he did so in violation of Federal law.”). Certain portions of the U.S. Attorney's comments, however, could reasonably have been interpreted to reflect the U.S. Attorney's personal views as to Silver's character or guilt with respect to the charges filed against him. See, e.g., id.at 1 (“For many years New Yorkers have asked the question ‘How could Speaker Silver, one of the most powerful men in all of New York, earn millions of dollars in outside income without deeply compromising his ability to honestly serve his constituents?’ Today we provide the answer. He didn't.”); id.(“And as the charges also show, the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself.”). Given Silver's status as one of the three most powerful politicians in New York State government, it is not surprising that the U.S. Attorney's comments were covered widely in the press. SeeMot. at 6–7 (citing Def. Exs. 16, 21, 22, 24, 26–33).

For members of the media who missed the press conference, the U.S. Attorney's Office also issued a press release. SeeU.S. Attorney's Office, New York State Assembly Speaker Sheldon Silver Arrested on Corruption Charges,Jan. 22, 2015 (Def. Ex. 2). The press release highlighted some of the U.S. Attorney's most salient comments, in particular regarding the relationship between the charges against Silver and a broader “culture of corruption” in Albany. See, e.g., id.at 1 (“Politicians are supposed to be on the people's payroll, not on secret retainer to wealthy special interests they do favors for. These charges go to the very core of what ails Albany—a lack of transparency, lack of accountability, and lack of principle joined with an overabundance of greed, cronyism, and self-dealing.”). At the same time, the press release referred to the charges as “allegations,” and closed by stating that “the charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.” Id.at 4.

In addition to the press release, following the press conference, the U.S. Attorney's Office transmitted several of the U.S. Attorney's comments via Twitter. One of the “tweets” announced that Silver had been charged with public corruption offenses and referred readers to a link to the press release. Gov't Ex. A at 2. Other tweets issued at the same time stated: “Bharara: Silver monetized his position as Speaker of the Assembly in two principal ways & misled the public about his outside income,” id.at 3, and “Bharara: Politicians are supposed to be on the ppl's payroll, not on secret retainer to wealthy special interests they do favors for.” Id.at 4.

The following day, the U.S. Attorney gave a previously-scheduled speech at New York Law School that was broadcast live on local television and covered by the press. Gov't Opp. at 9; see alsoNew York Law School, Preet Bharara, U.S. Attorney for the Southern District of New York, Speaks at CityLaw Breakfast Series(Def. Ex. 59). In his opening remarks, the U.S. Attorney said he had decided to address public corruption “given the timing” and the likelihood of interest in the topic. Unofficial Transcript of U.S. Attorney's Speech at New York Law School, Jan. 23, 2015 (Def. Ex. 3) at 1. Addressing the recent charges brought against Silver, the U.S. Attorney noted that, apart from “the standing and stature of the person who was charged,” the Government's charges against Silver were essentially “business as usual in our public corruption unit. Case after case after case we have brought has had at its base money and specifically a person who is in the public trust who is supposed to hold the public trust and sought ways to monetize his or her position.” Id.at 2. At other points, the U.S. Attorney noted that he was “not talking about anything outside of the four corners of the complaint and nothing beyond what [he] said [the day before]” and emphasized that he was speaking about the “allegations” made in Silver's case. Id.at 3, 6.

A couple of weeks later, but still before Silver was indicted, the U.S. Attorney was interviewed on MSNBC. When asked about the recent arrest of “one of the most powerful Democrats in New York,” the U.S. Attorney discussed the importance of public corruption prosecutions generally, and then added:

[W]hen you see somebody who's been charged with (and we've convicted many, many people before this case)—and you see somebody who has basically sold his office to line his pockets and compromised his integrity and ethics with respect to how to make decisions on all those issues I mentioned that affect people's lives, that's a big problem. And it's a big problem for democracy.

MSNBC, In Conversation, Preet Bharara and Ari Melber,Feb. 12, 2015 (Def. Ex. 4) at 2.

On February 19, 2015, the grand jury returned the Indictment charging Silver with honest services mail fraud, honest services wire fraud and extortion. Dkt. 9. On February 24, 2015, Silver filed the instant Motion claiming that, through his conduct, the U.S. Attorney has “caused [him] irreparable harm.” Mot. at 1. In order to remedy any prejudice that he may have suffered and to deter future misconduct, Silver urges the Court to dismiss the Indictment, or, at a minimum, to poll the grand jury and order disclosure of the grand jury minutes to determine whether the grand jurors were influenced in any improper way.Id.

DISCUSSION

An individual charged with a felony is “constitutionally entitled to have his case considered by an impartial and unbiased grand jury.” United States v. Burke,700 F.2d 70, 82 (2d Cir.1983)(citing Lawn v. United States,355 U.S. 339, 349–50, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Costello v. United States,350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). The proceedings of a grand jury are “accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand...