When a federal indictment is lodged in New York or elsewhere against a target, one early procedural move of the defendant is to file a motion to dismiss the indictment. These motions are only rarely successful, but are nonetheless very much worth the effort, particularly when glaring legal errors appear on the surface of the indictment. There are many potential legal grounds for dismissal that can be raised against an indictment that alleges felony charges of wire fraud, mail fraud or extortion.
This is the procedural posture of a federal case pending against the former New York State Assembly Speaker Sheldon Silver. His criminal defense counsel have filed a motion to dismiss on the ground of legal infirmity of the indictment. One fatal flaw of the indictment, according to the defense, is that it ignores the fact that New York has always allowed its state legislators the right to work part-time along with the legislative job.
Apparently, the federal prosecutor, U.S. Attorney Preet Bharra, is accusing Silver of taking about $4 million in bribes and kickbacks. The prosecutor has filed a request to seize millions in assets owned by Silver. But the defendant’s counsel are arguing that Silver’s earnings were a legal result of the rule that allows him to have an outside job. Defense counsel acknowledge that the prosecutor likely finds these practices distasteful, but counsel claims that they are perfectly lawful.
The government alleges that Silver worked with two New York law firms to accept large sums of money for using his influence to provide political favors. The prosecutor claims that the funds were masked as “referral fees,” instead of the kickbacks and bribes that they were in reality. It appears that the case may turn on the government’s ability to prove that the defendant provided political influence in direct response to payments made to him for that purpose. If the defendant proves that he performed legitimate legal work or received legally qualified referral fees, then these felony charges could possibly end up being a major loss against the record of the U.S. Attorney.
Source: startribune.com, “Former New York state assembly speaker asks judge to toss out criminal charges against him”, Larry Neumeister, April 2, 2015