United States v. Silver

103 F. Supp. 3d 370 (2015)

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Nature of the Case

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Facts

P filed a 35-page, single-spaced, sealed Complaint charging D, the then-Speaker of the New York Assembly, with fraud, conspiracy, and extortion. Magistrate Judge Maas issued an arrest warrant. 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. Midnight on January 22, 2015, although P's Complaint had not yet been unsealed, the press began reporting that that D would be arrested imminently along with the substance of the charges against him. D surrendered to federal authorities. D was granted bail and issued a short statement to the press. 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 P's charges against D, while also criticizing the 'the show-me the- money culture of Albany.' The Attorney noted that the charges at that point were only allegations. Some of what was said could reasonably have been interpreted to reflect the U.S. Attorney's personal views as to D's character or guilt with respect to the charges filed against him. The U.S. Attorney's comments were covered widely in the press. ['For many years New Yorkers have asked the question 'How could D, 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.'; 'And as the charges also show, the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself.'] The U.S. Attorney's Office also issued a press release. It detailed statements such as: '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.' The press release referred to the charges as 'allegations,' and closed by stating that 'the charges contained in the Complaint are merely accusations, and D is presumed innocent unless and until proven guilty.' The U.S. Attorney's comments were also posted on Twitter. One of the 'tweets' announced that D had been charged with public corruption offenses and referred readers to a link to the press release. Other tweets stated: 'Bharara: D monetized his position as Speaker of the Assembly in two principal ways & misled the public about his outside income,' and 'Bharara: Politicians are supposed to be on the ppl's payroll, not on secret retainer to wealthy special interests they do favors for.' The U.S. Attorney gave a speech at New York Law School where he had decided to address public corruption 'given the timing' and the likelihood of interest in the topic. The U.S. Attorney stated that, apart from 'the standing and stature of the person who was charged,' the Government's charges against D 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.' 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 D's case. The U.S. Attorney was interviewed on MSNBC and stated: 'When 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.' The grand jury returned the Indictment charging D with mail fraud, wire fraud, and extortion. D filed the instant Motion claiming that, through his conduct, the U.S. Attorney has 'caused [him] irreparable harm.' D 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.