## Facts

- The United States charged Sheldon Silver, then Speaker of the New York State Assembly, with honest services fraud, conspiracy, and extortion.
- A sealed criminal complaint was filed on January 21, 2015; a magistrate judge found probable cause and issued an arrest warrant.
- Silver surrendered and was arrested, after which the complaint was unsealed and widely reported.
- Around the arrest, the U.S. Attorney and the U.S. Attorney’s Office made extensive public statements via press conference, press release, social media posts, a speech, and televised appearances that discussed the case and condemned corruption in Albany.
- A grand jury later returned an indictment.
- Silver moved to dismiss the indictment, arguing the government’s extrajudicial statements violated rules governing prosecutors’ public comments and tainted the grand jury.
- Alternatively, Silver sought (i) polling of grand jurors and/or (ii) disclosure of grand-jury minutes to investigate possible improper influence.

## Issues

1. Whether the prosecutor’s public statements about the defendant and public corruption required dismissal of the indictment because they substantially influenced the grand jury or created grave doubt as to the indictment’s independence.
2. Whether the court should poll grand jurors and/or order disclosure of grand-jury minutes to investigate possible taint from the challenged publicity.

## Decision

- The court denied the motion to dismiss the indictment.
- The court criticized the government’s public-commentary strategy as coming close to violating governing rules and as risking fair-trial rights.
- The court held that dismissal was unwarranted because the defendant failed to show the publicity substantially influenced the grand jury’s decision to indict, or created grave doubt that the decision was free from such influence.
- The court denied the requests to poll the grand jury and to disclose grand-jury minutes, finding no sufficient factual basis to justify intruding on grand-jury secrecy.

## Legal Principles

- Dismissal of an indictment for prosecutorial misconduct before the grand jury is an extraordinary remedy and generally requires a showing that the misconduct substantially influenced the decision to indict, or that there is grave doubt the decision was free from such influence.
- Grand-jury proceedings carry a presumption of regularity; courts exercise limited supervisory power to set aside indictments absent demonstrated prejudice.
- Prosecutors’ public statements are constrained by rules intended to protect defendants’ fair-trial rights, while permitting public information about prosecutions, particularly in public-corruption matters.
- Disclosure of grand-jury materials or other inquiry into grand-jury deliberations requires a particularized need or a concrete basis to suspect improper influence; speculation or inference from public commentary alone is insufficient.

## Conclusion

The court declined to dismiss the indictment or pierce grand-jury secrecy based on the prosecutor’s extensive public statements, holding that—even if the government’s conduct was troubling—the defendant did not demonstrate actual grand-jury prejudice or a sufficient basis for intrusive grand-jury relief.


United States v. Silver, 103 F. Supp. 3d 370 (S.D.N.Y. 2015)