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Law360 (April 15, 2020, 10:55 PM EDT) -- Former New York lawmaker Dean Skelos contracted COVID-19 and will likely be released soon from the prison where he's serving time for a corruption conviction, attorneys from the U.S. Department of Justice said in a Wednesday letter to a Manhattan federal judge.
Prosecutors urged U.S. District Judge Kimba Wood to hold off on a final determination on the septuagenarian Skelos' request for compassionate release, which was lodged last month citing the risks the pandemic poses for incarcerated people.
The government attorneys said Skelos had actually tested positive for COVID-19, and the Bureau of Prisons is planning to release him to home confinement.
"Of course, if for some reason the BOP does not grant Skelos the relief described above, the court can consider his motion at that time, with the benefit of the BOP's decision, as well as the parties' input on whether any relief provided by the BOP is sufficient to satisfy the concerns that form the basis of Skelos's motion," the government said.
Prosecutors argued Judge Wood doesn't have jurisdiction to handle Skelos' request anyway, since a 30-day waiting period hadn't passed since he initially asked the BOP on March 26 for home confinement. Additionally, prosecutors said, Skelos' case is on appeal at the Second Circuit, giving the appeals court, not Judge Wood, jurisdiction over the issue.
Skelos and his son, Adam, were convicted twice on charges tied to jobs and payments that prosecutors said the former state Senate majority leader strong-armed out of companies that wanted him to act in their favor.
Skelos recently urged the Second Circuit to allow him yet another retrial on the corruption charges, saying the court's recent decision in U.S. v. Silver raises the possibility that Skelos was convicted on an illegal theory.
In the recent Silver decision, the appeals court said the jury should have been asked to find that bribes were paid in exchange for former Assembly Speaker Sheldon Silver's action on a specific "matter or question." The court said that distinction made a difference as to some of the charges, which it dismissed, but not others, on which it upheld Silver's convictions.
The jury instructions for some of the counts in the Skelos case were worded the same as in the Silver case, requiring the Second Circuit to now consider how to apply its decision in Silver's appeal to the Skelos case, the convicted politician argued.
The Second Circuit hasn't ruled yet on the issue.
Counsel for the parties didn't respond on Wednesday to requests for comment.
Skelos is represented in the district court by G. Robert Gage Jr. of Gage Spencer & Fleming LLP and Alexandra Shapiro of Shapiro Arato Bach LLP.
The government is represented in the district court by Edward B. Diskant, Thomas McKay and Douglas Zolkind of the U.S. Attorney's Office for the Southern District of New York.
The case is U.S. v. Skelos, case number 1:15-cr-00317, in the U.S. District Court for the Southern District of New York. The appeal is U.S. v. Skelos, case numbers 18-3421 and 18-3442, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Jody Godoy. Editing by Jay Jackson Jr.
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