Cutting Off the Stream: How United States v. Silver Affects "Stream of Benefits" or "Retainer" Bribery

A recent significant case that considered the boundaries of this mandate is the Second Circuit's decision in United States v. Silver, 948 F.3d 538 (2d Cir. 2020). Although the court stressed in that case that, by vacating certain of former New York State Assembly Speaker Sheldon Silver's counts of conviction, it was clarifying and not altering the "as opportunities arise" theory under which bribery prosecutions are often pursued, Silver nevertheless emphasized that this theory requires particularity with respect to the "question or matter" that is the subject of the bribe payor and recipient's corrupt agreement; a particularity that many observers — and indeed prosecutors — may not have appreciated was necessary.

Silver held that the government must prove that the official and the bribe payor agreed that, in exchange for payment, the official would "take official action on a specific and focused question or matter as the opportunities to take such action arose." Id. at 568 (emphasis in original). The court rejected what it viewed as an "open-ended" interpretation of the "as opportunities arise" theory, i.e., that the government need only prove that the official agreed to take official action for the benefit of the bribe payor as opportunities to take such actions arose. Id. at 565-569.