United States v. Valdes, Nelson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2005 Decided February 24, 2006

No. 03-3066

UNITED STATES OF AMERICA,
APPELLEE

V.

NELSON VALDES,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cr00154-01)

Paul H. Zukerberg argued the cause and filed the briefs
for appellant.

Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and Roy W. McLeese,
III and J. Patrick Rowan, Assistant U.S. Attorneys.

Before: HENDERSON, Circuit Judge, and EDWARDS* and
WILLIAMS, Senior Circuit Judges.

*
Senior Circuit Judge Edwards was in regular service at the
time of oral argument.
 2

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Dissenting Opinion filed by Circuit Judge HENDERSON.

WILLIAMS, Senior Circuit Judge: An FBI informant
working undercover gave cash to Nelson Valdes, then a
detective with the D.C. Metropolitan Police Department
(“MPD”), apparently as a reward for Valdes’s searching
several police data bases to supply information. (Save for
information about the non-existence of an arrest warrant for a
fictitious person, the information was, according to
uncontradicted testimony, publicly available. Joint Appendix
(“J.A.”) 659-61, 663-64.) Valdes was convicted under 18
U.S.C. § 201(c)(1)(B) of three counts of receipt of illegal
gratuities “for or because of an[] official act.” Valdes argues
that the statute is far less sweeping than the government
successfully claimed in district court, and that under a proper
construction the government’s evidence was insufficient. He
makes a number of other claims, including attacks on two
related aspects of the jury instruction and an argument that he
was entitled to acquittal as a matter of law on grounds of
entrapment. We agree with Valdes that the district court’s
interpretation of the statute was error and that the government
failed to show that the acts for which Valdes received
compensation were official acts within the meaning of § 201.
We therefore reverse the conviction without reaching Valdes’s
other claims.

* * *

On the evening of February 17, 2001, William Blake,
working as an undercover informant for the FBI, went on
assignment to a Washington nightclub called “1223” (located
at 1223 Connecticut Avenue, NW). At “1223” Blake was
 3

introduced to Valdes as a judge, and Valdes in turn
identified himself as an MPD detective. The two met again at
“1223” a week later, on which occasion Valdes gave Blake his
business card with his cell phone number, saying it was “just
in case [Blake] ever needed a favor.”

On March 17, an FBI agent instructed Blake to see if
Valdes would provide him with police information.
Accordingly, the FBI entered into state computer data bases
the names of five fictitious individuals, along with fictitious
addresses and license plate numbers. J.A. 361-A-B, 365-67,
371-72. That evening, again at “1223,” Blake asked Valdes if
he could do him a “favor” of looking up the license plate
numbers of some individuals that Blake said owed him
money, presumably to track down their contact information.
Valdes indicated that it would be “no problem” and told Blake
to call him on his cell phone to get the information. On
leaving, Blake handed Valdes a $50 bill; no testimony
describes the accompanying conversation if any. Four days
later, Blake called Valdes, introducing himself as “the judge,”
reiterated his earlier request and provided Valdes with the first
license plate number. Valdes then obtained the name and
address of the license holder through a query to the
Washington Area Law Enforcement System (“WALES”), a
computer data base linked to state data bases. When Blake
called back later, Valdes provided him with the name and
address. After expressing satisfaction with the information,
Blake asked Valdes, “How much [do] I owe you for this?”
and Valdes responded, “Just a thank-you.”

Two days later, on March 23, Blake called Valdes again
and asked him to run a second license plate query, which
Valdes agreed to do. Blake proposed that they meet the next
day in person; as Blake testified by way of explanation, a
meeting would enable him to offer Valdes money: “I couldn’t
push [money] through the phone.” The FBI equipped Blake
 4

for the meeting with a gold Rolex and Mercedes-Benz
automobile with audio and video recorders; it is unclear what
the handlers’ purpose was in outfitting the phony judge with a
Rolex and Mercedes. Blake and Valdes arranged to meet at a
local gas station, where Blake paid Valdes $200 and asked
him to run a third license plate. Valdes provided Blake with
the names and addresses for the second and third plates that
evening over the phone, again having obtained the
information via WALES.

On March 30, Blake asked Valdes to run a fourth license
plate. The two agreed to meet the next day at the same gas
station; there, Blake paid Valdes $100 upon receiving the
fourth name and address, again obtained via WALES. Blake
also asked Valdes to check whether a friend of Blake’s “ha[d]
a warrant,” handing Valdes an additional $100 to “give you a
little more incentive.” Valdes again used WALES and that
night told Blake that there was no warrant out on the person.

Valdes was indicted on three counts of bribery, in
violation of 18 U.S.C. § 201(b)(2)(A) and (C). A jury
convicted him of three counts of the lesser-included offense of
receipt of an illegal gratuity, in violation of 18 U.S.C.
§ 201(c)(1)(B).

* * *

We review the sufficiency of the evidence de novo,
considering it in the light most favorable to the government, to
determine whether any rational trier of fact could have found
Valdes guilty beyond a reasonable doubt of all required
elements of the crime. See United States v. Schaffer, 183 F.3d
833, 839-40 (D.C. Cir. 1999).

The anti-gratuity statute provides that:
 5

Whoever . . . being a public official . . . otherwise
than as provided by law for the proper discharge of
official duty, directly or indirectly demands, seeks,
receives, accepts, or agrees to receive or accept anything
of value personally for or because of any official act
performed or to be performed by such official . . . shall be
fined under this title or imprisoned for not more than two
years, or both.

18 U.S.C. § 201(c)(1)(B) (emphasis added). An “official act”
is defined for these purposes as

any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any time be
pending, or which may by law be brought before any
public official . . . .

18 U.S.C. § 201(a)(3). Unlike most of § 201’s anti-bribery
provisions, the anti-gratuity provision has no requirement that
the payment actually “influence[] . . . the performance” of an
official act. Compare, e.g., 18 U.S.C. § 201(b)(2)(A) .

Valdes argues that logging onto the WALES system to
retrieve public information does not constitute a “decision or
action” and that there was no “question, matter, cause, suit,
proceeding or controversy” regarding any of the individuals
that was or could be pending before Valdes. He relies
primarily on United States v. Muntain, 610 F.2d 964 (D.C.
Cir. 1979), where we found that the defendant Muntain, an
Assistant to the Secretary for Labor Relations at the
Department of Housing and Urban Development (“HUD”),
had not accepted illegal gratuities for an official act when he
was compensated by private persons for selling private auto
insurance schemes to labor unions with whose leaders he also
dealt on official HUD business. We rejected the
government’s argument that official acts “encompass any acts
 6

within the range of an official’s public duties,”
which the government argued included Muntain’s meetings
with labor union officials. Id. at 967. As the promotion of
group auto insurance was not a matter that “could be brought
before Muntain—or, for that matter, anyone else at HUD—in
an official capacity,” there was no danger that the gratuities
received could have induced Muntain “to act improperly in
deciding a HUD-related matter.” Id. at 968.

The government tries to distinguish Muntain on the basis
that it involved private auto insurance schemes, whereas (it
argues) WALES queries inherently relate to the official duty
of conducting police investigations. But the Muntain court
plainly didn’t share the government’s present view of the
public/private divide. Muntain used government resources in
contacting possible labor union insurance purchasers,
combining trips on government business with insurance
promotion. Id. at 967-68. Further, besides conducting such
meetings, Muntain had, as the government stressed in an
alternative argument, wielded his supervisory authority to
direct HUD subordinates to assist him in promoting insurance.
Id. at 969. Thus Muntain deployed government resources
(travel opportunities and workforce), just as did Valdes (the
WALES database). But in Muntain we clearly rejected the
idea that such a use of government resources was in itself an
“official act” within the meaning of § 201(a)(3).

The government’s concept of “official act” is striking in
its complete failure to address the statutory clause modifying
“decision or action,” namely, “on any question, matter, cause,
suit, proceeding or controversy, which may at any time be
pending, or which may by law be brought before any public
official.” The words are far from self-defining, but they
suggest at least a rudimentary degree of formality, such as
would be associated with a decision or action directly related
to an adjudication, a license issuance (or withdrawal or
 7

modification), an investigation, a procurement,
or a policy adoption. Easily included, of course, would be a
clerk’s manufacture of official government approval of
Supplemental Security Income benefits, as in United States v.
Parker, 133 F.3d 322 (5th Cir. 1998); compare Dissent at 6
n.3, or an official’s “ignoring garbage violations and parking
violations” he was charged with enforcing, compare Dissent at
10-11. It is telling that the government’s brief, in purporting
to quote the statute, actually omits all the objects of the
preposition “on” except “matter” (using ellipses, to be sure).
Appellee’s Br. at 35.

Yet in United States v. Sun-Diamond Growers, 526 U.S.
398, 406 (1999), the Supreme Court relied on those words in
rejecting the government’s claim that an official violated the
statute in receiving benefits given simply because of his
official position. The official’s mere “ability to favor the
donor in executing the functions of his office” was not
enough. Id. In reaching its holding the Court discussed
several hypothetical gifts that it said would not fall under
§ 201(c)(1)(A) for want of any “official act,” including a
replica sports jersey given to the President during a
ceremonial White House visit, a school baseball cap given to
the Secretary of Education during a visit to a school, and a
complimentary lunch provided for the Secretary of
Agriculture in connection with a speech to farmers. Id. at
406-07. While hosting a ceremony, visiting a school, and
delivering a speech “are assuredly ‘official acts’ in some
sense,” they “are not ‘official acts’ within the meaning of the
statute, which, as we have noted, defines ‘official act’ to mean
‘any decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending,
or which may by law be brought before any public official.’”
Id. at 407. Thus the Court, in rejecting the above
“absurdities,” id. at 408, invoked the exact words jettisoned
by the government here.
 8

Valdes’s WALES queries would appear to fit within the
range of activities excluded from coverage by Sun-Diamond’s
examples. All the officials’ acts (the WALES queries,
ceremony, visit, or speech) have in common that none is a
“decision or action” that directly affects any formal
government decision made in fulfillment of government’s
public responsibilities. Thus distortions of government
execution of policy are (depending on one’s scheme of
classification) either non-existent or entirely in the realm of
casual and informal use of government resources. While one
or more of Valdes’s disclosures may have been unethical,
sanctionable, or even criminal independently of § 201, and
while disclosure of an outstanding arrest warrant might have
an indirect effect on its execution, none of these disclosures
constituted a “decision or action on any question, matter
[etc.]” in the usual sense of those words. Sun-Diamond
mainly distinguished a “decision or action on any question
[etc.]” from mere office-holding and its potential for later
action; yet the case also suggests a distinction between a
“decision or action on any question [etc.]” and the vast array
of behavior that Congress could have covered with some all-
encompassing phrase such as “act or conduct related to the
official’s work or in any way using government resources.”

We also put aside for obvious reasons the government’s
straw man argument that the mere fact that persons were
fictitious does not mean that “matters,” etc. could not be
pending with respect to them. It points to United States v.
Myers, 692 F.2d 823, 849-50 (2d Cir. 1982), where the
Second Circuit upheld conviction of a congressman for
receiving bribes to introduce private immigration bills
permitting fictitious sheiks to remain in the United States.
But, assuming correctness of the decision, private immigration
bills are “questions,” “matters,” and “proceedings” that a
congressman could have “brought before” himself and fellow
congressmen. Id. at 850. Here, by contrast, the informant
 9

plainly sought no change in the status of the FBI’s five
fictional beings, with respect to whom not even a fictional
“question, matter, cause, suit proceeding or controversy” was
pending. Of course once there is a fictional person, a fictional
“matter” might be ginned up. But a matter can likely be
generated for every datum in every government data base. If,
as the government implicitly contends, liability applies when
no “matter,” etc. is either pending, or would be brought into
existence “for or because” of the gratuity (as it would have
been in Myers), or can otherwise in any plausible way “be
brought” before the official, the analysis would sweep in any
compensation for sharing any such datum.

The government makes two other arguments in support of
its expansive reading of “official acts.” First, it argues that
§ 201(c)(1) itself contains a “safety valve,” as its language
introducing subsections (A) and (B) contains the phrase
“otherwise than as provided by law for the proper discharge of
official duty.” See also § 201(c)(1)(B) (containing the same
qualifying clause). At oral argument it suggested specifically
that Sun-Diamond’s hypothetical of the Secretary of
Education’s visit and receipt of a baseball cap would be
“otherwise” authorized under regulations issued by the Office
of Government Ethics (“OGE”), 5 CFR § 2635.204(a), as a
gift below $20 and thereby excepted from § 201. See Oral
Arg. Tape at 21:20. The OGE regulations, the government
argues, further provide that a gift in accordance with the OGE
regulations does not violate the anti-gratuity statute. 5 CFR
§ 2635.202(b). But the Sun-Diamond Court has already been
there and done that. As Justice Scalia noted, “We are unaware
of any law empowering OGE to decriminalize acts prohibited
by Title 18 of the United States Code.” 526 U.S. at 411.
Indeed, the Court indicated just the opposite, namely, that
while gifts below $20 are excepted under the OGE
regulations, they are not excepted under § 201, id. at 411-12,
and thus rejected the government’s claim that the “safe
 10

harbors [from OGE regulations] are, in general,
incorporated into the enforcement of section 201.” See Reply
Brief of the United States at 10, Sun-Diamond, 1999 WL
83925. Interestingly, the OGE regulations take away what
they purport to give, saying that despite their terms an
employee must not “[a]ccept a gift in return for being
influenced in the performance of an official act.” 5 CFR
§ 2635.202(c)(1). Application of that provision would in
many cases (depending on the relation between the
regulation’s “influenced” and § 201’s “for or because of”)
return us to the interpretive issue we started with and thus to
the government’s sweeping notion of an “official act.”

More generally, Sun-Diamond went on to reason that
anti-corruption law manifested a maze of precisely targeted
prohibitions, and exceptions from more general prohibitions,
so that “a statute in this field that can linguistically be
interpreted to be either a meat axe or a scalpel should
reasonably be taken to be the latter.” 526 U.S. at 412.

Finally, the government argues that United States v.
Birdsall, 233 U.S. 223 (1914), controls. There the Court said,
“Every action that is within the range of official duty comes
within the purview of these sections.” Id. at 230. Whatever
the language may mean, the government’s proposed broad
reading was certainly not Birdsall’s holding. The Court was
focused on rejecting the defendants’ theory on appeal—that
for conduct to qualify as an “official act” it must be one
“prescribed by statute,” id. at 231, as one of the decisions
under review had held. See United States v. Birdsall, 206 F.
818, 821 (D. Iowa 1913); see also United States v. Van Wert,
195 F. 974, 977 (D. Iowa 1912) (arguably imposing an even
more stringent test, saying that “unless the act . . . is a
violation of some act of Congress . . . or of some departmental
rule or regulation authorized by Congress . . . no crime has
been committed.”). So far as authority was concerned, the
 11

Court held, it was enough that the act—there an Interior
Department or Bureau of Indian Affairs recommendation of
clemency for persons charged with selling liquor to Indians—
fulfilled “an established usage which constituted the common
law of the department and fixed the duties of those engaged in
its activities.” 233 U.S. at 231.

We find unconvincing the government’s argument that
Congress endorsed its reading of Birdsall in the 1962
recodification of the statute. See S. Rep. No. 87-2213 (1962),
reprinted in 1962 U.S.C.C.A.N. 3852. The Report merely
notes in cursory fashion that the “term ‘official act’ is defined
to include any decision or action taken by a public official in
his capacity as such,” id. at 3856, and makes no mention of
the words that the Sun-Diamond Court and we find crucial—
the reference to a “question, matter, cause, suit, proceeding or
controversy.” Sun-Diamond and Muntain—both decided after
the 1962 recodification—clearly reject the notion that “every
action within the range of official duty” automatically satisfies
§ 201’s definition. See 526 U.S. at 412; 610 F.2d at 967 n.3

Because the government failed to show that the payments
received by Valdes were for any “decision or action on any
question, matter, cause, suit, proceeding or controversy, which
may at any time be pending, or which may by law be brought
before any public official,” as required by 18 U.S.C. § 201,
the judgment of conviction is

Reversed.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
In Mexico, they call it “la mordida” (literally, “the bite”); in
Iran, “bakhshish”; and in France, “pot-de-vin.” Here in
America, we call it a “payoff” and, today, the majority calls it
lawful.
Appellant Nelson Valdes appeals his conviction on three
counts of receiving illegal gratuities in violation of 18 U.S.C. §
201(c)(1)(B). The majority concludes that the government’s
evidence was insufficient as a matter of law to establish that
Valdes committed an “official act” within the meaning of 18
U.S.C. § 201(a)(3). In reversing Valdes’s conviction, I believe
it grossly misconstrues the meaning of the term “official act,”
relies on inapposite case law and ignores on-point precedent.
Accordingly, I must dissent.
I.
On February 17, 2001, Valdes, a Metropolitan Police
Department (MPD) officer, first met William Blake, a Federal
Bureau of Investigation (FBI) informant posing as a judge, at a
popular D.C. nightclub and the two exchanged pleasantries.1
One week later, Blake again saw Valdes at the nightclub. At
that time, Valdes handed Blake a business card and told Blake
to call him if Blake ever needed a favor. On St. Patrick’s Day,
Blake returned to the nightclub and once again saw Valdes.
After engaging in small talk, Blake told Valdes that he (Blake)
was having difficulty collecting a debt. Blake told Valdes that
he might “need him to do me a favor” and handed Valdes $50.
Joint Appendix (J.A.) 50. Four days later, Blake called Valdes
and asked Valdes to obtain registration information for a certain
(fictitious) license plate number. Valdes agreed. Blake called
Valdes again later that day to obtain the requested information.
Valdes, not having had an opportunity to obtain it, asked Blake
to call back later. Blake, in turn, called a third time that day and
Valdes supplied him with the registration information. Blake
1
The relationship between Valdes and Blake lasted a little over
six weeks during February–March 2001.
 2

asked Valdes, “Uhhhhh, how much [sic] I owe you for this?,”
and Valdes responded, “Just a thank you.” Joint Exhibits
Appendix (J.E.A.) 111. Blake told Valdes, “Naw, man, I’ll take
care of you somehow” and Valdes laughed. J.E.A. 111.
Two days later, Blake called Valdes again. Blake asked
Valdes to obtain the registration information for another
fictitious license plate number and again Valdes agreed. Blake
also suggested a face-to-face meeting on the next day. The next
day, Blake called Valdes to arrange the meeting. The two met
15 minutes later at a gas station. During this meeting Blake
handed Valdes $200, saying, “Here man, put this in your
pocket.” J.E.A. at 118. Valdes said, “Oh, thank you.” J.E.A. at
119. Blake handed Valdes a scrap of paper with another license
plate number on it and asked Valdes to obtain the registration
information.
Blake called Valdes again on March 30th, telling Valdes, “I
got another tag here for you . . . .” J.E.A. at 129. Valdes told
Blake to call back in 20 minutes. Blake called back and gave
Valdes another fake license plate number, asking Valdes to meet
him in person the next night, and Valdes replied “no problem.”
J.E.A. at 130. Blake called Valdes the next day to set up the
meeting. They agreed to meet in 15 minutes. During the
meeting, Valdes handed Blake a piece of paper with the
requested registration information written on it. Blake handed
Valdes $100 and Valdes responded, “That’s cool.” J.E.A. 121.
Blake then asked Valdes to check for any arrest warrant on a
friend of his (also fictitious). He told Valdes, “Okay, yeah, look,
give you a little more incentive, right?” and handed Valdes
another $100. J.E.A. 122. Valdes replied, “Thanks.” J.E.A.
122. Blake called Valdes later that night. Valdes told Blake to
call back and Blake called back as Valdes was searching for the
arrest warrant information. Valdes informed Blake that there
was no outstanding warrant on Blake’s friend. J.E.A. 127.
 3

Valdes obtained both the registration information and the
warrant information from the Washington Area Law
Enforcement System (WALES) computer database. In each
instance, he logged onto WALES from the police station using
his unique user identification number. WALES was accessible
to Valdes as an MPD officer only. J.A. 407, 418; J.E.A. 91.
Valdes had attended an eight-hour training course, passed an
examination and attended re-training biennially in order to
maintain his access to WALES. J.A. 416. The use of the
database was strictly limited to law enforcement purposes. J.A.
418; J.E.A. 91. Once he logged onto the database, Valdes
accessed the information Blake requested.2 Valdes then relayed
to Blake the information he obtained from WALES. Although
Valdes did not request payment, he accepted from Blake a total
of $400 for the information (and an additional $50 apparently
for unspecified future favors). Based on this evidence, the jury
convicted Valdes of three counts of receiving an illegal gratuity.
II.
Section 201(c)(1)(B) of Title 18 of the United States Code
makes it unlawful for a public official, directly or indirectly, to
“demand[], seek[], receive[], accept[], or agree[] to receive or
accept anything of value personally for or because of any
official act performed or to be performed by such official.” 18
U.S.C. § 201(c)(1)(B). Receiving an illegal gratuity is a lesser-
included offense of bribery. United States v. Brewster, 506 F.2d
62, 68 (D.C. Cir. 1974); see also United States v. Schaffer, 183
F.3d 833, 841 (D.C. Cir. 1999) (noting difference between
bribery and illegal gratuity offenses). To establish the offense,
the government must prove that the defendant (1) is a public
official who (2) accepts, receives, etc. anything of value (3) for
or because of any official act performed or to be performed. See
2
As the majority notes, the FBI had earlier entered all of the
fictitious information into state computer databases accessible
through WALES. Maj. op. at 3.
 4

United States v. Ahn, 231 F.3d 26, 31 (D.C. Cir. 2000). An
“illegal gratuity ‘can take one of three forms’: (1) a reward for
past action, (2) an enticement to maintain a position already
taken, or (3) an inducement to take or refrain from some future
official action.” See id. (quoting and citing Schaffer, 183 F.3d
at 841–42).
The majority concludes that the district court erred in
interpreting the statute and that “the government failed to show
that the acts for which Valdes received compensation were
official acts.” Maj. op. at 2. Under 18 U.S.C. § 201(a)(3), an
“official act” is defined as
any decision or action on any question, matter, cause,
suit, proceeding or controversy, which may at any
time be pending, or which may by law be brought
before any public official, in such official’s official
capacity, or in such official’s place of trust or profit.
The definition of “official act” has not been substantively
altered since it was first codified in 1866. See Act of July 13,
1866, ch. 184, § 62, 14 Stat. 168. In 1962, the Congress
consolidated in section 201 of Title 18 the various provisions in
the criminal code related to bribery. The consolidation effected
“no significant changes of substance” and, more important,
“[did] not restrict the broad scope of the present bribery statutes
as construed by the courts.” 1962 U.S.C.C.A.N. 3852, 3853.
Of particular relevance, the Senate Report noted that “[t]he term
‘official act’ is defined to include any decision or action taken
by a public official in his capacity as such.” Id. at 3856.
As the majority states, maj. op. at 7–8, the United States
Supreme Court first interpreted the “official act” language in
United States v. Birdsall, 233 U.S. 223 (1914). In that case, the
Court reinstated bribery charges against Birdsall in connection
with money he paid Interior Department officials to induce them
to recommend leniency for certain persons convicted of selling
 5

liquor to Indians. Id. at 231. The statute at issue in Birdsall—
close in wording to the one we interpret today—made it illegal
for an official to accept money given with the intent to influence
“his decision or action” “on any question, matter, cause, or
proceeding which may at any time be pending, or which may by
law be brought before him in his official capacity.” Crim. Code
§ 39, 117, 35 Stat. 1096, 1109 (1909). Birdsall argued that the
indictment charged no offense because the officials’
recommendations of clemency did not constitute official acts
under the statute. Birdsall, 233 U.S. at 227. The district court
agreed, finding conclusive the fact that no statute gave Interior
Department officials the power to make sentencing
recommendations. United States v. Birdsall, 206 F. 818, 821
(D.C. Iowa 1913). The Supreme Court, however, disagreed with
the district court’s conclusion that an act was “official” only if
a statute explicitly authorized the official to perform it. Birdsall,
233 U.S. at 231. The Court declared that “[e]very action that is
within the range of official duty comes within the purview” of
the bribery statute. Id. at 230. It did not matter that the power
to make such recommendations was not expressly granted by
statute, rule or regulation. Id. at 231–32. The Court held that an
“official act” may be found in “established usage,” noting that
“in numerous instances, duties not completely defined by
written rules are clearly established by settled practice, and
action taken in the course of their performance must be regarded
as within the provisions of the above-mentioned statutes against
bribery.” Id. at 231.
Our court has also taken a broad view of the meaning of
“official act” as used in the bribery statute. In United States v.
Muntain, 610 F.2d 964 (D.C. Cir. 1979), we discussed Birdsall,
noting approvingly that other courts had interpreted “official
act” to include those “actions or decisions involving matters
falling indisputably within the ambit of the public official’s
official duties.” Id. at 968 n.3. On the other hand, we concluded
that the term “official act” did not include the use of one’s status
 6

as a public official to promote a purely private venture. Id. at
968. Muntain, a Housing and Urban Development (HUD)
undersecretary, peddled private group automobile insurance to
labor unions with which he dealt in his official capacity. Id. at
966–67. The use of his official status to further his private
venture did not run afoul of section 201 because “there was no
evidence that Muntain’s meetings with labor officials to discuss
and promote group automobile insurance involved a subject
which could be brought before Muntain or, for that matter,
anyone else at HUD in an official capacity.” Id. at 968. We
noted, however, that the decision would have been different had
the government shown that “[Muntain’s] responsibilities . . . at
HUD ha[d] been expanded by settled practice or otherwise to
include meeting with labor union officials concerning group
automobile insurance.” 3 Id. at 968 n.3.
3
See also United States v. Parker, 133 F.3d 322, 325 (5th Cir.
1998), cert. denied, 523 U.S. 1142. In that case, the defendant was
charged with violating section 201(b)(2)(C), which prohibits a public
official from “being induced to do or omit to do any act in violation
of [his] official duty.” Parker, a clerk to an administrative law judge
(ALJ) in the Social Security Administration (SSA), logged onto a
database and made false entries. She argued that that her conduct did
not constitute an act in violation of her official duty because she was
not authorized to make the entries. Id. The court rejected her
argument, using section 201(a)(3)’s “official act” definition. It
found that her conduct constituted an “official act” because the
appeals in which she entered fraudulent entries were pending in her
“place of trust or profit” and her “abuse of the SSA facilities and
equipment” coupled with abuse of her legitimate authority allowed
her to make the entries. Id. at 326. While the majority “easily”
includes Parker’s acts within its definition of “official act,” see maj.
op. at 7, I doubt that it agrees with Parker’s precise holding: “We
therefore hold that the term ‘official act’ encompasses use of
governmental computer systems to fraudulently create documents
. . . , even when the employee’s scope of authority does not formally
encompass the act.” Id. (emphases added).
 7

The Supreme Court discussed the meaning of “official act”
in United States v. Sun-Diamond Growers of California, 526
U.S. 398 (1999). Its holding, however, covers a different issue,
namely, “whether conviction under the illegal gratuity statute
requires any showing beyond the fact that a gratuity was given
because of the recipient’s official position.” Id. at 400.
Consequently, the Court’s treatment of “official act” is dictum.
It does not, and was not intended to, sub silentio, lessen the
vitality of Birdsall and its progeny.4 But even if the Court’s
“official act” discussion were not dictum, Valdes’s conviction
of receiving illegal gratuities would nonetheless easily stand.
While the linguistics of section 201(a)(3) may be complicated,
the reason that Valdes’s receipt of money for accessing
information falls within its definition is simple.
In Sun-Diamond, the Court chose what it termed “the more
natural meaning” of section 201(a)(3), that is, that a gratuity
received “for or because of any official act” means “for or
because of some particular act of whatever identity.” Id. at 406
(emphasis added). It then discussed the “peculiar results” the
alternative reading would produce, criminalizing the receipt of
such token gifts as a sports jersey, a school baseball cap and a
free lunch—all received by the public official “based on his
official position and not linked to any identifiable act.” Id.
Anticipating the response that interpreting “official act” to
require an identifiable act would also produce “peculiar results”
in the sports jersey/school baseball cap/free lunch scenarios—
i.e., a sports jersey “for” a White House visit, a baseball cap
“for” a visit to the school and a free lunch “for” a speech—the

4
See Muntain, 610 F.2d at 968 (citing Birdsall); see also Parker,
133 F.3d at 326 (same); United States v. Biaggi, 853 F.2d 89, 98–99
(2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989) (Congressman’s
letters on office letterhead to New York mayor regarding a
corporation’s arrears to city constitutes “official act,” citing
Birdsall).
 8

Court dismissed these “absurdities” as falling outside the
statutory definition of “official act.” Id. at 408. By linking the
violation to a particular “official act,” it concluded, “it is
possible to eliminate the absurdities through the definition of
that term.” Id. (emphasis original). Hosting a sports team,
visiting a school and public speaking are not, in the words of
section 201(a)(3), “decision[s] or action[s] on any question,
matter, cause, suit, proceeding or controversy, . . . at any time
. . . pending, or . . . by law . . . brought before [the President or
a Cabinet Secretary].”
Not so with Valdes’s accessing and disclosing police
information.5 Valdes “act[ed] on a question, . . . which may at
any time be pending, or . . . by law be brought before [him], in
[his] official capacity.” The “question[s]” were “who owns this
license plate?” and “is there an outstanding arrest warrant
charging this person?” Valdes’s “action” was to investigate by
accessing WALES.6 And “for” this action, which he undertook
multiple times, he “accept[ed] . . . value personally [$400]” in
violation of 18 U.S.C. § 201(c)(1)(B). How many times in
performing his official duties has Valdes investigated vehicle
registration and outstanding warrants by accessing WALES?
While on patrol, probably hourly—while at headquarters, as
requests for that information are made of him. The point is, as
I noted earlier, simple. Valdes accepted money for performing
his duty as an MPD officer. And section 201(c)(1)(B) makes
this conduct illegal.
5
The majority also characterizes the information Blake requested
as “police” information. Maj. op. at 3.
6
Alternatively, Valdes could be viewed as having “act[ed]” on
the “matter” of vehicle registration and arrest warrant information.
Such information is continuously “pending” before Valdes as part of
his job entails accessing it. Finally, the “matter” before Valdes was
in his “place of trust or profit” as WALES was accessible to him
solely because of his official position.
 9

The majority puts all its eggs in the Sun-Diamond basket
and, in so doing, scrambles them. First, it treats the Court’s
“official act” discussion as something more than dictum.7
Second, it equates Valdes’s WALES search with White House
and school visits and a speech, concluding that none constitutes
a “ ‘decision or action’ that directly affects any formal
government decision made in fulfillment of government’s public
responsibilities.”8 Maj. op. at 8. Building on this language
(which is nowhere even hinted at in Sun-Diamond), it then
makes an exception from section 201(c)(1)(B)’s prohibition for
“casual and informal use of government resources.” Id.
Nonsense! Sun-Diamond recognizes no de minimis, “casual,”
“informal” or any other type of weighted exception from section
201’s coverage. Instead, the Court uses the definition of
“official act” to opine that certain actions would not be “within
the meaning of the statute.”9 Sun-Diamond, 526 U.S. at 407.

7
While the majority dismisses the language in Birdsall as dictum
because, in its view, that language is not necessary to the Court’s
holding, see maj. op. at 11, it considers the Sun-Diamond dictum
oracular in interpreting “official act.”
8
To equate a police officer’s taking money from a private citizen
for investigating/revealing police information with the President’s
accepting a jersey from a championship sports team for honoring the
team at the White House is itself an “absurdity.”
9
Before its Sun-Diamond discussion, the majority notes that the
words of section 201(a)(3), while “far from self-defining,” “suggest
at least a rudimentary degree of formality such as, . . . an
adjudication, a license issuance, . . . [or] an investigation.” Maj.
op. at 7 (emphasis added). While I plainly do not agree with the
formal/informal dichotomy the majority has fashioned, I note that it
at least recognizes that “an investigation”—precisely what Valdes
does, and did here, as an MPD officer—would carry the necessary
weight.
 10

Were the majority correct—that “official act” includes only
“formal” duties—then a law enforcement officer’s failure to
perform his official—but routine—duties for money, which was,
before today, illegal, see, e.g., Ahn, 231 F.3d at 32 (reasonable
juror could find police officer’s failure to report violations of
law “official act”), would likewise be decriminalized for the
requisite “rudimentary degree of formality” would be lacking.
Our society knows what happens when we allow a police officer
to take money for doing—or not doing—his job. It produces a
man like Captain McCluskey:
He had been a good cop, a brave cop. The
tough young punks terrorizing the street corners
fled when he approached and finally vanished
from his beat altogether. He was a very tough
cop and a very fair one. He never took his son
around to the storekeepers to collect his money
presents for ignoring garbage violations and
parking violations; he took the money directly
into his own hand, direct because he felt he
earned it . . . . He always made his rounds. He
gave his stores a lot of protection, a lot of
service. When winos and drunks filtered up
from the Bowery to panhandle on his beat he got
rid of them so roughly that they never came
back. The tradespeople in his precinct
appreciated it. And they showed their
appreciation.
He also obeyed the system. The bookies in
his precinct knew he would never make trouble
to get an extra payoff for himself, that he was
content with his share of the station house bag.
His name was on the list with the others and he
never tried to make extras. He was a fair cop
who took only clean graft and his rise in the
 11

police department was steady if not spectacular.
Mario Puzo, The Godfather 137 (Signet ed. 1978).
I believe that the government has established that Valdes’s
accessing of police information constitutes an “official act.”
Notwithstanding some of the information was otherwise
publicly available, WALES was available to Valdes only by
virtue of “[his] official capacity.” Moreover, the arrest warrant
information was not, as the majority concedes, publicly
available. See maj. op. at 2.
Today, the majority sets free a law enforcement officer who
accepted money personally for taking action in his official
capacity—precisely the conduct at which section 201(c)(1)(B)
is aimed. It ignores decades-old (and unchallenged) case law
and replaces a bright-line rule with an amorphous test that
depends on whether the action taken or decision made is
“formal.”10 See maj. op. at 8–9. Such an interpretation is
neither workable, reliable nor justifiable. Accordingly, I
respectfully dissent.

10
The majority’s discussion of Birdsall begins by minimizing
Birdsall’s broad definition of “official act” (“[e]very action that is
within the range of official duty”) with the prefatory remark
“Whatever the language may mean.” Maj. op. at 11. It concludes
with the statement that “Sun-Diamond and Muntain . . . clearly reject
the notion that ‘every action within the range of official duty’
automatically satisfies § 201’s definition.” Id. at 12. First, Sun-
Diamond does not “clearly” reject Birdsall’s language. The Court
does not even mention Birdsall because the definition of “official
act” was not the issue before it. As for Muntain, this court did not
reject Birdsall’s formulation—it restated that formulation as follows:
“Every action . . . within the range of official duty . . . include[s] as
well those duties customarily associated with a particular job.” 610
F.2d at 968 n.3. Valdes’s accessing of police information fits this
formulation as well.
12