A lawyer for Sheldon Silver cited a unanimous Supreme Court decision that narrowed the definition of what kind of conduct can serve as the basis for a corruption prosecution, as he argued on Thursday that the disgraced former speaker of the State Assembly should be acquitted or granted a new trial.

The lawyer, Steven F. Molo, invoked the 2016 Supreme Court decision — which was handed down seven months after Mr. Silver’s conviction and involved former Gov. Bob McDonnell, a Virginia Republican — in arguments before a three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan.

But a federal prosecutor told the panel that the evidence at Mr. Silver’s trial “overwhelmingly established that Sheldon Silver abused the immense power that he had as the speaker of the Assembly,” and that his case was “nothing like the McDonnell case.”

The McDonnell ruling has become a focal point of Mr. Silver’s appeal and the appeals of Dean G. Skelos, the former Republican majority leader of the State Senate, and his son, Adam, who last year were both also convicted of corruption charges. The Skeloses’ appeals have not yet been argued.
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Mr. Silver’s and the Skeloses’ convictions were the culmination of a campaign against corruption in Albany led by Preet Bharara, the former United States attorney in Manhattan. His office won a string of convictions of current or former state legislators before he was fired last week by the Trump administration.

Mr. Bharara was not present at the arguments. His former deputy, Joon H. Kim, now the acting United States attorney, was in attendance.

Mr. Silver, 73, a Democrat, who served for more than two decades as Assembly speaker and became one of New York’s most powerful politicians, was also not in the courtroom.

Evidence at trial showed that Mr. Silver had orchestrated two criminal schemes in which he obtained nearly $4 million in illicit payments in return for official actions that benefited a cancer researcher at Columbia University and two real estate developers, Glenwood Management and the Witkoff Group.

In one scheme, Mr. Silver arranged to have the State Health Department award two grants totaling $500,000 to the researcher, Dr. Robert N. Taub. In return, Dr. Taub referred patients with potentially valuable legal claims to a law firm, Weitz & Luxenberg, that gave Mr. Silver a portion of its fees.

In the second scheme, Mr. Silver arranged to have the developers move certain tax business to a law firm, Goldberg & Iryami, that also shared its fees with him. In return, Mr. Silver supported critical rent legislation that Glenwood backed, for example, and met with its lobbyists.
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Mr. Silver was convicted of honest services fraud, money laundering and extortion, and he was forced to forfeit his assembly seat. He faces a 12-year prison sentence, but the trial judge, Valerie E. Caproni, granted his request to remain free on bail while he appealed.

There was no question, Judge Caproni wrote, that Mr. Silver “took a number of official acts — most obviously passing legislation and approving state grants and tax-exempt financing — as part of a quid pro quo” in the two schemes. But there was a “substantial question,” she added, of whether the court’s jury instructions, which defined official action, were in error in light of the McDonnell decision, and if so, whether such error was harmless.

The McDonnell ruling says that official action must involve formal and concrete government actions or decisions, like filing a lawsuit or holding a hearing, not just making phone calls or setting up meetings.

“The definition that was given by the district court is too broad,” Mr. Molo, the lawyer for Mr. Silver, argued on Thursday, citing the judge’s instruction that “any action” taken under color of official authority “was sufficient to be an official act.”

Mr. Silver’s lawyers contend that there is no way to tell whether the jury, in convicting Mr. Silver, improperly relied on acts that would not be considered official under the McDonnell decision.

“McDonnell says you cannot instruct that way,” Mr. Molo said. “McDonnell changed the law dramatically.”

But the prosecutor, Andrew D. Goldstein, who is now chief of the corruption unit in the United States attorney’s office, distinguished Mr. Silver’s case from Mr. McDonnell’s, noting that Mr. Silver’s “was about far more than mere introductions and meetings and nothing more, which was the problem in McDonnell.”

“Here, as the court required and the jury found,” Mr. Goldstein said, “Sheldon Silver engaged in official decision-making as the opportunities arose, in order again and again and again, for each scheme, over a decade’s period of time, to benefit those who were paying him.”

The panel, which included Judges José A. Cabranes, Richard C. Wesley and William K. Sessions III, gave no indication of when it would rule.