18-2380
United States v. Silver

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                             ______________

                               August Term, 2018

      (Case Argued: March 13, 2019        Case Decided: January 21, 2020
     Motion Filed: February 27, 2020       Motion Decided: April 1, 2020)

                               Docket No. 18-2380
                                 ____________

                          UNITED STATES OF AMERICA,

                                        Appellee,

     THE NEW YORK TIMES COMPANY, NBCUNIVERSAL MEDIA, LLC,

                                        Intervenors,
                                       v.

                              SHELDON SILVER,

                                       Defendant-Appellant.
                                ______________



Before:
               WESLEY, LOHIER, and SULLIVAN, Circuit Judges.

                                ______________
       A jury convicted Defendant-Appellant Sheldon Silver of two counts each of
honest services mail fraud, honest services wire fraud, and Hobbs Act extortion,
and one count of money laundering. Silver appealed, arguing that the United
States District Court for the Southern District of New York (Caproni, J.) erred in
instructing the jury on the elements of honest services fraud and Hobbs Act
extortion. On January 21, 2020, we issued an opinion vacating and dismissing
three of Silver’s seven counts of conviction, affirming the remaining four counts,
and remanding for resentencing. See United States v. Silver, 948 F.3d 538 (2d Cir.
2020).
       Silver now moves this Court to stay issuance of the judgment mandate
pending his filing a petition for certiorari to the Supreme Court. Silver presents
no substantial questions raising either a reasonable probability that four justices
will vote to grant certiorari, or a fair prospect that five justices will vote to reverse
this Court’s judgment. Furthermore, Silver fails to show good cause for issuing a
stay.
       For these reasons Silver’s motion is DENIED.



                           Meir Feder, James Loonam, Andrew J.M. Bentz, Jones
                           Day, New York, NY & Washington, D.C., for Defendant-
                           Appellant.

                           Daniel C. Richenthal, Assistant United States Attorney,
                           for Geoffrey S. Berman, United States Attorney for the
                           Southern District of New York, New York, NY, for
                           Appellee.

                                   ______________

PER CURIAM:

      Silver moves to stay issuance of the judgment mandate pending the filing

and disposition of a petition for a writ of certiorari he intends to file with the

United States Supreme Court. Silver presents three arguments that he intends to

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make in his petition. First, Silver argues, as he did on appeal, that honest services

fraud bribery and Hobbs Act extortion under color of right require a “meeting of

the minds” agreement.       Second, Silver argues that the Supreme Court has

questioned the continuing validity of Evans v. United States, 504 U.S. 255, 268

(1992), and that Evans should be overruled. Third, Silver argues that this Court’s

harmless error analysis was improper because the Government failed to argue

that, if there were an error in the jury instructions, that error was harmless, and

because Silver had no opportunity to address the harmless error question. Silver

also claims there is good cause to stay issuance of the judgment mandate because,

if he is ultimately successful, he will have needlessly served time in prison.

      We find no merit in Silver’s arguments. This panel rejected Silver’s first

argument, at length, in our opinion on Silver’s appeal.           Silver’s argument

concerning Evans does not meet the stringent and extraordinary standard required

for granting a stay pending writ of certiorari. Finally, Silver’s manufactured circuit

split on the harmless error issue lacks any precedential support. Furthermore,

Silver fails to demonstrate good cause for a stay.

      Silver’s motion is therefore DENIED.




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                                   BACKGROUND

      The facts and the procedural history of this case are well documented in the

prior decisions of this Court and of the district court. See United States v. Silver, 864

F.3d 102 (2d Cir. 2017), cert. denied, 138 S. Ct. 738 (2018); United States v. Silver, No.

15-Cr-93 (VEC), 2018 WL 4440496 (S.D.N.Y. Sept. 17, 2018); United States v. Silver,

948 F.3d 538 (2d Cir. 2020) (the “Opinion”).

      After this Court issued its latest opinion, Silver moved for both rehearing

and rehearing en banc; the motion was denied without comment on February 21,

2020. Seven days later Silver filed the instant motion seeking a 90-day stay of the

issuance of the judgment mandate pending the preparation, filing, and disposition

of a petition for writ of certiorari with the United States Supreme Court. Under

Federal Rule of Appellate Procedure 41(b), issuance of the judgment mandate is

automatically stayed pending this Court’s resolution of Silver’s motion.



                                    DISCUSSION

      Federal Rule of Appellate Procedure 41(d) permits parties to move to stay

the judgment mandate pending the filing of a petition for a writ of certiorari in the

Supreme Court. Fed. R. App. P. 41(d). To succeed in that motion, however, one

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“must show that the petition would present a substantial question and that there

is good cause for a stay.” Fed. R. App. P. 41(d)(1).

      In his motion for a stay, Silver presents three questions he intends to raise

for the Supreme Court: (1) whether bribery under either Hobbs Act extortion or

honest services fraud requires an “agreed upon exchange,” see Mot. at 11; see also

id. at 5–8, amounting to a meeting-of-the-minds agreement; (2) whether a

conviction for Hobbs Act extortion can be premised upon a theory of bribery in

view of two Supreme Court Justices’ recent questioning of Evans, 504 U.S. at 268;

and, (3) “whether or when” a court of appeals “can engage in a sua sponte harmless

error analysis,” in view of a divide that Silver claims exist among the courts of

appeal, see Mot. at 6.

      Silver also claims that good cause exists for a stay, because, “if [he] is

resentenced before the Supreme Court grants review, then Mr. Silver will likely

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

decides the case . . . [which would be] unjust.” Id. at 19.

      1. Silver Presents No Substantial Questions Raising a Reasonable
         Probability That Certiorari Will be Granted

      To start, the standard for presenting a “substantial question” is high.

Silver’s proposed petition presents no “substantial question[s]” that raise a

                                          5
“reasonable probability” that four justices will vote to grant certiorari, nor is there

a “fair prospect” that five justices will vote to reverse the Panel’s judgment. See

Maryland v. King, 133 S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers); Ind. State Police

Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009) (per curiam). For the reasons

explained below, Silver cannot show that the Opinion “conflict[s] with the

decision of another United States court of appeals on the same important matter,”

or “has so far departed from the accepted and usual course of judicial proceedings

. . . as to call for an exercise of [the Supreme] Court’s supervisory power.” U.S.

Sup. Ct. R. 10(a). And far from conflicting with relevant Supreme Court decisions,

the Opinion reconciles recent Supreme Court decisions with this Court’s precedent

and the caselaw of other circuits. Cf. U.S. Sup. Ct. R. 10(c); see also Silver, 948 F.3d

at 553–58, 568 (harmonizing United States v. Ganim, 510 F.3d 134 (2d Cir. 2007), with

McDonnell v. United States, 136 S. Ct. 2355 (2016)). Even if Silver could make that

“exceptional” showing, see Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007), this

Court need not grant Silver’s motion because “our decision to” do so “is a matter

of discretion,” Khulumani v. Barclay Nat’l Bank Ltd., 509 F.3d 148, 152 (2d Cir. 2007).

      First, Silver’s “agreement” argument is the same one that we thoroughly

rejected in the Opinion. See Silver, 948 F.3d at 547–52. Nothing in his motion


                                           6
suggests that the Supreme Court would disagree with our analysis. Rather than

engaging with our discussion of many of the same cases he now cites, Silver opts

to rely upon cribbed quotations from those and other cases that are taken out of

context in order to contrive a nonexistent conflict. See Mot. at 8–11 (discussing,

inter alia, United States v. Jennings, 160 F.3d 1006 (4th Cir. 1998)); cf. Silver, 948 F.3d

at 554 n.8, 566 n.17, 570 n.21, 572 n.23. The previously undiscussed cases that Silver

cites are not only distinguishable from Silver’s case but are also consistent with the

Opinion. Cf., e.g., United States v. Terry, 707 F.3d 607, 614 (6th Cir. 2013) (affirming

conviction of state court judge for accepting campaign contributions in return for

explicit agreements to fix cases and take other official actions, and noting that

“[e]ach payment did not need to be tied to a specific official act, so long as [the

official] understood that, whenever the opportunity presented itself, [he] would

take specific official actions on the giver’s behalf” (internal quotations omitted));

United States v. Ring, 706 F.3d 460, 468 (D.C. Cir. 2013) (“But in context it is clear

that ‘agreement’ is used as a synonym for specific intent.”). Silver presents no

reason why we should embrace the third iteration of this argument when we

rejected it the first two times.




                                            7
      So too with Silver’s argument that over half of the Supreme Court may now

wish to overrule Evans. Silver relies on the fact that Justices Thomas—who

dissented in Evans—and, to a lesser extent, Breyer recently called Evans into

question in Ocasio v. United States, 136 S. Ct. 1423, 1437 (2016) (Breyer, J., concurring

and Thomas, J., dissenting). Silver’s math comes up short; he has not made a

colorable showing that there is a “reasonable probability” that four justices will

vote to grant certiorari. See King, 133 S. Ct. at 2. Furthermore, Silver provides no

reason to think that there is a “fair prospect” that five justices will vote to overturn

Evans, which has been the law for nearly 30 years. See id.

      Third, Silver’s manufactured circuit split regarding harmless error analysis

lacks any precedential support. Initially, Silver fails to cite a case that, after even

a cursory reading, validates his position. See, e.g., United States v. Giovannetti, 928

F.2d 225, 227 (7th Cir. 1991) (“[W]e have discretion to overlook a failure to argue

harmlessness, and in deciding whether to exercise that discretion the controlling

considerations are 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.”); United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999)


                                           8
(“Although the government makes no assertion whatsoever that the admission of

[certain evidence] without adequate foundation was harmless error, this court

may in its discretion initiate harmless error review in an appropriate case.”

(internal quotations omitted)). And contrary to Silver’s contention that the Second

Circuit is now at odds with other circuits, the Second Circuit has long followed the

same approach. See United States v. Dolah, 245 F.3d 98, 107 (2d Cir. 2001) (“We have

discretion to consider the harmlessness of an alleged error even though the

Government has not argued this line of defense.”), abrogated on other grounds by

Crawford v. Washington, 541 U.S. 36, 63–64 (2004); see also United States v. Mason, 692

F.3d 178, 184 (2d Cir. 2012). Additionally, Silver offers no reason to think this

approach is wrong.

      Silver’s argument is particularly difficult to credit given the well-accepted

standard of review for instructional error. See United States v. Nouri, 711 F.3d 129,

138 (2d Cir. 2013) (“[W]e review a district court's jury charge de novo, and will

vacate a conviction for an erroneous charge unless the error was harmless.”). Due

to the nature of de novo review, courts of appeal are free to identify errors in jury

instructions that depart from those offered by criminal defendants or the

Government. Were Silver’s view of the law correct, courts of appeal would be


                                          9
locked into interminable cycles of remand or requests for additional briefing from

the parties. Instead, the line of cases that Silver misconstrues provides courts with

the discretion to decline harmless error review without the benefit of briefing when

appropriate, such as where there is a voluminous record or other practical

considerations control. See, e.g., Giovannetti, 928 F.2d at 227. In contrast, it makes

good sense to allow courts to review errors in jury instructions for harmlessness

where, as in Silver’s case, they can identify the relevant portions of the record and

need not rely on the parties’ arguments to reach a conclusion. See, e.g., Silver, 948

F.3d at 568–72.

      Finally, Silver’s arguments on all points are likely to fail because the Opinion

is predicated upon the rare factual scenario presented by Silver’s case. See, e.g., id.

at 557 (noting that the Panel does not “suspect [the Opinion] will affect the

prosecution of bribery in most cases”); id. at 561–62, 569–70 (discussing narrow

grounds upon which Silver’s conviction for Mesothelioma Scheme rested). Due to

the complexity of the Government’s theory at trial and the unique issues raised by

the statute of limitations with regard to the Mesothelioma Scheme, Silver’s case

has an unusual factual context not conducive to review by the Supreme Court for

the purposes of resolving broad, open questions of law. See United States v. Johnson,


                                          10
268 U.S. 220, 227 (1925) (“We do not grant a certiorari to review evidence and

discuss specific facts.”); see also Miroyan v. United States, 439 U.S. 1338, 1343 (1978)

(Rehnquist, C.J., in chambers) (noting that, before granting certiorari, “the Court is

apt to feel that the case taken under consideration should pose the issue as clearly

as possible”). Thus, for these and the reasons discussed above, we find Silver’s

proposed petition fails to present a substantial question warranting a stay of the

mandate pending disposition of a petition for writ of certiorari.

      2. Silver Fails to Demonstrate Good Cause for a Stay

      Finally, Silver fails to demonstrate good cause for a stay. “A stay is not a

matter of right, even if irreparable injury might otherwise result.” Ind. State Police

Pension Tr., 556 U.S. at 961. Silver makes merely the “customary” claim that,

“should a stay be denied, but certiorari be granted” and the Opinion be reversed,

he “will have served time in prison under a judgment of conviction which will

eventually be reversed.” See Miroyan, 439 U.S. at 1343. But that is true for virtually

every criminal defendant seeking a writ of certiorari. In addition, 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. Cf. United States v. Randell, 761 F.2d 122, 125–26
                                        11
(2d Cir. 1985) (denying bail pending appeal where success on the merits would

not likely result in reversal or an order for new trial on all of the counts for which

appellant received a prison term). Silver has failed to show good cause, and thus

the judgment mandate should issue.



                                  CONCLUSION

      For the foregoing reasons, the motion is DENIED.




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