In a week of major Supreme Court decisions, Johnson v. United States didn’t garner as many headlines as rulings legalizing gay marriage or upholding the Affordable Care Act—but former Assembly Speaker Sheldon Silver is arguing the case bolsters his motion to dismiss one of the criminal counts against him.
Mr. Silver’s attorneys Steven Molo and Joel Cohen filed a letter with Judge Valerie Caproni last week, pointing out that a Supreme Court decision that found the Armed Career Criminal Act—a “three-strikes” type legislation that ups sentencing for repeat offenders—was “unconstitutionally vague.”
In a motion to dismiss a superseding indictment against Mr. Silver, his attorneys made the same argument about the law behind one of the seven charges leveled against him: “monetary transactions involving crime proceedings.”
Mr. Silver is accused of presenting as legitimate outside income from law firms what U.S. Attorney Preet Bharara alleges was actually millions of dollars of kickbacks and bribes gained through his official position in Albany, using his influence to steer real estate developers to a law firm that paid him for referrals and to trade research funds for asbestos patient referrals.
In the case of Johnson v. United States, the high court found that the Armed Career Criminal Act’s inclusion of any felony that “involves conduct that presents a serious potential risk of physical injury to another” was too vague—and that the law didn’t have to be vague in every single application for it to be void.
“In Johnson, the Court held that this provision was unconstitutionally vague. The Court specifically rejected the argument—also made by the Government here—that ‘a statute is void for vagueness only if it is vague in all its applications,'” Mr. Silver’s attorneys wrote.
In his motion to dismiss, Mr. Silver’s lawyers argued that the federal charge of “monetary transactions involving crime proceedings,” which essentially means Mr. Silver is accused of profiting off illegal activities, did not meet certain legal standards—including being clear enough that “ordinary people can understand what conduct is prohibited” and that the law is written “in a manner that does not encourage arbitrary and discriminatory enforcement.”
“The statute has staggering breadth, sweeping within its scope any transaction in excess of $10,000 involving the proceeds of myriad offenses—including a defendant’s mere receipt and deposit of funds into a bank account bearing his name,” Mr. Silver’s lawyers wrote in the motion to dismiss.
The scope is so wide it is impossible to prosecute all people who commit the crime, Mr. Silver’s lawyers wrote, leaving it to prosecutors to “pick and choose who gets prosecuted.”
“The consequences of that standardless discretion are palpable in this case, where the Government tacked on a gratuitous money laundering count, the factual basis for which was surely known long ago. The statute is a recipe for arbitrary and discriminatory enforcement,” the attorneys wrote.
But U.S. Attorney Preet Bharara argued that the Supreme Court’s decision in Johnson v. United States had little to do with Mr. Silver’s repeated attempts to have the charges against him tossed, saying the defendant “misconstrues the import of Johnson.”
The Armed Career Criminal Act was vague enough to create split decisions in lower federal courts, while there have been no disputes among courts in how to interpret the law Mr. Silver is challenging, Mr. Bharara wrote.
“The defendant’s continued failure to cite a single case holding, or even suggesting, that Section 1957 is unconstitutionally vague, or that questions its validity, is fatal to his claim,” Mr. Bharara wrote.
The U.S. Attorney also said that his office had not argued that the law needed to be vague in all of its applications to be thrown out—only that it was too vague as applied to Mr. Silver, “a burden he fails to meet.”
The charge Mr. Silver is trying to challenge with the vagueness argument amounts for just one of the seven counts against him in an indictment handed up by a grand jury. Mr. Silver has sought to have all counts against him tossed, arguing that Mr. Bharara has played fast and loose with rules surrounding what he can say to the press.
In April, Judge Caproni rejected Mr. Silver’s first motion to dismiss, saying Mr. Bharara’s comments had not been enough to sway the public ahead of a trial—but she did knock Mr. Bharara, saying he had “strayed 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.”
Mr. Silver filed a second motion to dismiss in late May, based on a superseding indictment handed up by the grand jury. Judge Caproni has yet to rule on that motion.
A trial date has been set for November 2.