Criminal Justice Insider

An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.

As Opportunities Arise: The State of Bribery in the Second Circuit


On February 23, 2021, the Court of Appeals for the Second Circuit affirmed the convictions of former State Senate Majority Leader, Dean Skelos (“Dean”), and his son, Adam Skelos (“Adam”). This decision brings to a conclusion a lengthy legal battle which entailed two trials, two appeals, and a landmark Supreme Court decision in McDonnell v. United States, 136 S.Ct. 2355 (2016). More importantly, it sustains a key tool that prosecutors use in bringing bribery charges: the “as opportunities arise” theory of bribery.

Dean and Adam were originally tried and convicted in 2015 for bribery relating to three different schemes. The first scheme involved Dean’s agreement to push for changes to rent stabilization laws and state tax abatements in a way that would be favorable to Glenwood Management, a New York real estate company. In exchange, Glenwood Management procured title insurance work and other employment for Adam. The second scheme involved Dean pushing through a proposal from Adam’s then employer, Abtech Industries, in exchange for greater compensation for Adam. The third and final scheme involved Dean’s request that PRI, a medical malpractice insurance company, hire and retain Adam, despite poor job performance, while repeatedly voting on specific legislation that was helpful to PRI’s business.

Following the original conviction in 2015, the Supreme Court decided McDonnell. In order to prove bribery, the Government must demonstrate that the defendant took a payment in exchange for an official act. The Supreme Court’s decision in McDonnell substantially narrowed the definition of an “official act” for the purposes of the bribery statute, 18 U.S.C. Sec. 201. The jury instructions in the first Skelos trials used a broader definition of “official act” than permissible under the standard set by McDonnell. Accordingly, on appeal, the Second Circuit ordered the matter remanded for a new trial. On July 17, 2018, following the second trial, a jury again convicted Adam and Dean.

At the second trial, the Government raised a slightly different theory of bribery. Instead of alleging that Dean took a payment in exchange for an explicit pre-determined promise to perform an official act, the theory was Dean took a payment with the expectation that he would use his influence to benefit Glenwood Management, Abtech Industries or PRI as the opportunity to perform official acts arose. In their most recent appeal, Adam and Dean argued that this theory was eviscerated by McDonnell because it failed a heightened standard for specificity in the identification of a discrete “official act.”

The Second Circuit, in affirming Adam and Dean’s conviction, unambiguously stated that the “as opportunities arise” theory of bribery survived the Supreme Court’s decision in McDonnell. However, this theory was not without its limitation. In a case resting on an “as opportunities arise” theory of bribery, McDonnell requires the prosecution to identify a specific question or matter to be influenced by the payment. The Government must prove that at the time the defendant accepted the payment, he or she understood that they were expected to take official action on a specific and focused question or matter as the opportunity to do so arose. In the case of Dean and Adam Skelos, the Government had adequately identified specific questions or matters within each scheme that Dean was expected to act on in exchange for the payments to Adam.

Notably, the Court did find that the jury instructions at the second trial were flawed insofar as they did not require that the jury find such specific matters or questions. However, the Court found the error to be harmless in light of the substantial factual evidence shown to the jury of such discrete matters. Accordingly, the Court affirmed both convictions.

There is no longer an open question. The “as opportunities arise” theory bribery is alive and well in the Second Circuit. The narrower door for bribery charges established by McDonnell has been opened a little bit wider.

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02.26.2021  |  PRACTICE AREAS: Criminal Defense

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