United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 2006 Decided February 9, 2007
No. 03-3066
NELSON VALDES,
APPELLANT
V.
UNITED STATES OF AMERICA,
APPELLEE
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.
Blair G. Brown and Barak Cohen were on the brief for
amicus curiae the National Association of Criminal Defense
Lawyers in support of 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 at the time the brief was filed, and
Roy W. McLeese, III and J. Patrick Rowan, Assistant U.S.
Attorneys.
J. Gerald Hebert was on the brief for amicus curiae
Campaign Legal Center in support of appellee.
2
Before: GINSBURG, Chief Judge, SENTELLE, HENDERSON,
RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH,
and KAVANAUGH, Circuit Judges, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
Concurring opinion filed by Circuit Judge KAVANAUGH,
with whom Senior Circuit Judge WILLIAMS joins.
Dissenting opinion filed by Circuit Judge HENDERSON,
with whom Circuit Judge RANDOLPH joins.
Dissenting opinion filed by Circuit Judge GARLAND, with
whom Circuit Judges SENTELLE, HENDERSON, RANDOLPH,
and BROWN join.
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”). The cash was apparently a reward for Valdes’s
searching several police databases to supply otherwise
publicly available information to the informant. Based on
these exchanges, Valdes was convicted under 18 U.S.C.
§ 201(c)(1)(B) of three counts of receiving an illegal gratuity
“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 to show that either
his database queries or the release of the resulting information
constituted an “official act” under the statute. He makes a
number of other claims, including attacks on two related
aspects of the jury instruction.
3
A panel of the court agreed that under a correct analysis
of the statute the evidence was insufficient, and accordingly
reversed the judgment; the panel did not reach Valdes’s other
claims. United States v. Valdes, 437 F.3d 1276 (D.C. Cir.
2006). The full court resolved to hear the case en banc, on the
sufficiency issue and on whether the district judge’s charge
had correctly defined an “official act.” We now decide that
the government failed to show that the acts for which Valdes
received compensation fell within the scope of § 201(c)(1)(B);
our analysis of the statute also makes clear that the jury charge
was error. We therefore reverse the conviction.
* * *
On the evening of February 17, 2001 William Blake,
working as an undercover informant for the FBI, went on
assignment to a Washington, D.C. nightclub called “1223”
(located at 1223 Connecticut Avenue, NW). At “1223” Blake
was 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, “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. The FBI
then entered the names of five fictitious individuals, along
with fictitious addresses and license plate numbers, into state
computer databases. That evening, again at “1223,” Blake
asked Valdes if he could do him a “favor” and look up some
license plate numbers, ostensibly to get contact information on
individuals who owed him money. Valdes indicated that this
would be “no problem” and told Blake to call him on his cell
4
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 database linked
to state databases. 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
for the meeting with a gold Rolex and a Mercedes-Benz
automobile with audio and video recorders; it is unclear what
the handlers’ purpose was in outfitting the phony judge with
these luxury items. Blake and Valdes arranged to meet at a
local gas station, where Blake handed 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
5
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 the 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:
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). An “official act” is defined for
these purposes as
6
[1] any decision or action [2] on any question, matter,
cause, suit, proceeding or controversy, [3] which may at
any time be pending, or which may by law be brought [4]
before any public official, in such official’s official
capacity . . . .
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).
Conversely, the bribery provisions reach a number of
additional “predicate acts,” most notably an official’s “act in
violation of . . . lawful duty,” 18 U.S.C. § 201(b)(1)(C); see
also id. § 201(b)(2)(C) (“in violation of . . . official duty”), not
covered in the gratuity ban.
The government maintains that the bribery and gratuity
statute should be construed broadly, to encompass essentially
any action which implicates the duties and powers of a public
official. At oral argument, counsel argued that the specific
requirements of 18 U.S.C. § 201(a)(3) are “equivalent” to a
statute that would simply prohibit “any decision or action
within the scope of the official’s authority.” Transcript of
Oral Argument at 35. This view, the government argues, is
consistent with the Supreme Court’s statement that “[e]very
action that is within the range of official duty comes within
the purview of these sections.” United States v. Birdsall, 233
U.S. 223, 230 (1914). To the extent that the statutory clause
modifying “decision or action,” namely, “on any question,
matter, cause, suit, proceeding or controversy,” constitutes
limiting language (a point the government does not concede),
the government alleges that it is not relevant here: Valdes’s
searches and disclosures constitute plain “actions” on clear
“questions,” namely, “Who owns this license plate and where
7
does he or she live?” and “Does this man have an outstanding
arrest warrant?” Appellee’s Br. 29.
The government’s position, however, both misinterprets
the Supreme Court and ignores the plain text of the statute.
Whatever the broad language in Birdsall may mean, it was
certainly not the Court’s holding. In Birdsall, 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,” 233 U.S. 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.”). Rejecting this very narrow definition, the
Court held simply that “[i]n 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.” Birdsall, 233 U.S.
at 231. Birdsall did not, however, stand for the proposition
that every action within the range of official duties
automatically satisfies § 201’s definition; it merely made clear
the coverage of activities performed as a matter of custom.
More useful to this case is the Supreme Court’s
observation in United States v. Sun-Diamond Growers, 526
U.S. 398 (1999), that § 201(c) was “merely one strand of an
intricate web of regulations, both administrative and criminal,
governing the acceptance of gifts and other self-enriching
actions by public officials.” Id. at 409. The Court went on to
8
say that § 201(c)’s context warranted a specific interpretive
approach:
[T]he numerous . . . regulations and statutes littering this
field[] demonstrate that this is an area where precisely
targeted prohibitions are commonplace, and where more
general prohibitions have been qualified by numerous
exceptions. Given that reality, 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.
Id. at 412. In Sun-Diamond, this adjuration led the Court to
reject the government’s theory that 18 U.S.C. § 201(a)(3)
covers any action taken in an official capacity. While
numerous activities—hosting a ceremony, visiting a school, or
delivering a speech, for example—“are assuredly ‘official
acts’ in some sense,” id. at 407, it would be “absurd[],” the
Court said, to consider them within the scope of § 201, id. at
408. Sun-Diamond’s interpretive gloss, like the rule of lenity,
thus works to protect a citizen from punishment under a
statute that gives at best dubious notice that it has criminalized
his conduct.
Importantly for our purposes, the Sun-Diamond Court
reached its conclusion “through the definition of [the] term
[‘official act’],” id. (emphasis altered), and, in particular,
through a clause that the government seems quick to ignore
here, namely “on any question, matter, cause, suit, proceeding
or controversy.” At a minimum the government’s
interpretation of this six-term series is overly expansive,
extending the statute to any action that in effect answers any
question. More broadly, the government’s theory reads the
series out of the statute entirely. Neither position squares with
9
Sun-Diamond’s direction or gives effect to all of the statutory
language.
In contrast, relying on the canon of noscitur a sociis, we
believe that the words “question” and “matter” are known by
the company that they keep. See, e.g., Cal. Indep. Sys.
Operator Corp. v. FERC, 372 F.3d 395, 399-401 (D.C. Cir.
2004) (describing the canon); see also United States v.
Menasche, 348 U.S. 528, 538 (1955) (“The cardinal principle
of statutory construction is to save and not to destroy.”)
(internal quotation omitted); Gustafson v. Alloyd Co., Inc.,
513 U.S. 561, 573-75 (1995) (applying Menasche’s principle).
Seen in that light, the six-term series refers to a class of
questions or matters whose answer or disposition is
determined by the government. That class includes such
questions as “Should the Congress enact new legislation
regulating corporate directors?,” “Should this person be
prosecuted?,” and “What firm should supply submarines for
the Navy?” But it would not include questions like “What is
your name?,” an issue that the government does not normally
resolve.
Our reading of the statute is buttressed by the elements
immediately preceding and following the six-term series. It
would be linguistically odd, at a minimum, to treat an answer
to a question as a “decision or action on” a question unless the
answer were one that the government had authority to decide.
The same holds true of the clause requiring that such
questions or matters be of a class which “may at any time be
pending, or which may by law be brought before any public
official.” Questions not subject to resolution by the
government are not ordinarily the kind that people would
describe as “pending” or capable of being “by law . . .
10
brought” before a public official, especially if the law imposes
no mandate on the official (or perhaps any official) to answer.
Our interpretation of the statute squares with this court’s
earlier decision in United States v. Muntain, 610 F.2d 964
(D.C. Cir. 1979), where we found that the defendant, 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
received compensation from private persons for selling private
auto insurance schemes to labor unions with whose leaders he
also dealt on official HUD business. In doing so we
characterized the government as asking the court to “construe
18 U.S.C. § 201(g) [prior version of § 201(c)(1)(B)] as a
statutory prohibition against the misuse of public office and
contacts gained through that office to promote private ends,”
id. at 967; we plainly rejected that construction. Nor were we
ready to read the statute as barring Muntain’s corralling his
subordinates into his insurance promotion enterprise, given
the absence of any behavior meeting the statutory definition of
“official act.” Id. at 969. Affirmatively, we said that “[i]t is
the corruption of official decisions through the misuse of
influence in governmental decision-making which the bribery
statute makes criminal.” Id. at 968.1 Understandably, the
dissenters’ brief discussion of the Muntain decision fails to
explain what distinguishes Muntain’s case (the use of
government property and his own subordinates to offer private
deals to union officials, with whom it was his job to deal on
1
Pace Judge Garland’s Dissent at 25, we were plainly
speaking of the statute’s gratuity and not its bribery provisions, as
the case involved no claim of bribery.
11
official matters) from Valdes’s (use of government resources
to answer Blake’s questions).
Thus, both our precedent and the language of the statute
make clear that § 201 is not about officials’ moonlighting, or
their misuse of government resources, or the two in
combination. Even apart from the anti-bribery statute (which
we discuss below in addressing the dissenters), numerous
other regulations and statutes prohibit these activities. See,
e.g., 18 U.S.C. § 641 (prohibiting the conversion of
government property); 5 U.S.C. § 7353 (restricting federal
employees’ acceptance of gifts); 18 U.S.C. § 2721 (limiting
disclosure—not only by state employees but by other
“authorized recipient[s]”—of personal information such as a
driver’s address contained in state motor vehicle records); cf.
D.C. Code § 22–704 (prohibiting gratuities which cause an
“official to execute any of the powers in such official vested
. . . otherwise than is required by law”). And though the
likelihood that Valdes violated these other statutes implies
nothing direct about his culpability under § 201, their
existence underscores an observation in Sun-Diamond:
“Absent a text that clearly requires it, we ought not expand
this one piece of the regulatory puzzle so dramatically as to
make many other pieces misfits. . . . [N]ot only does the text
here not require that result; its more natural reading forbids
it.” 526 U.S. at 412.
Having defined the statute’s domain negatively, we
nonetheless emphasize that today’s decision is in no way at
odds with numerous other cases finding liability under § 201.
By focusing on those questions, matters, causes, suits,
proceedings, and controversies that are decided by the
government, our interpretation of the statute easily covers: a
clerk’s manufacture of official government approval of a
12
Supplemental Security Income benefit, as in United States v.
Parker, 133 F.3d 322 (5th Cir. 1998); a congressman’s use of
his office to secure Navy contracts for a ship repair firm, as in
United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988); and a
Veterans’ Bureau official’s activity securing a favorable
outcome on a disability claim, as in Beach v. United States, 19
F.2d 739 (8th Cir. 1927) (based on a predecessor statute). All
of those cases are clearly covered by the statute because they
concern inappropriate influence on decisions that the
government actually makes. Questions like “Should this
person receive a contract or disability benefit, and for how
much?” are simply in a different class from questions like
“Where do you live?” and “What kind of car do you drive?”
Section 201(a)(3) clearly encompasses the former, but not the
latter.
Our understanding of the term “official act” is thus in
stark contrast to the definition given in the post-trial jury
instructions:
The term “official act” means any decision or action
within the scope of the public official’s authority. The
term “official act” includes the decisions or actions
generally expected of a public official such as a police
officer. These decisions or actions do not need to be
specifically described by law, rule, or job description to
be considered an official act. Similarly, the term official
duty is not limited to a duty imposed by law or statute,
but includes any duty lawfully imposed in any manner by
settled practice within the government agency.
Over the explicit objection of the defendant, the court refused
to include either the statutory language on which we have
focused—the definition of “official act”—or anything
13
comparable. In light of our interpretation of the statute, this
was error—and by no means harmless error. Cf. United Mine
Workers v. Pennington, 381 U.S. 657, 670 (1965) (“Such
conduct is not illegal . . . . The jury should have been so
instructed and . . . we cannot hold this lapse to be mere
harmless error.”).
* * *
Our dissenting colleagues suggest that Valdes’s queries
violate § 201(c)(1)(B) because they constitute a police
investigation. We share an important premise of this
argument, namely the proposition that a police investigation is
in the same class of processes as a “question, matter, cause,
suit, proceeding or controversy.” “Should the police
investigate this person?,” for example, is clearly a question
answered by the government. Providing or receiving gifts for
or because of decisions to initiate, accelerate, retard, conclude,
or skew such an investigation is unquestionably conduct
prohibited by § 201.
Simply stating that police investigations are covered by
the bribery and gratuity statute does little to resolve the case,
however. While there does not appear to be any direct
precedent on the point, it seems implausible to assert that any
interrogative action done by an officer using government
resources constitutes an action on an “investigation” of the
kind which would be covered by § 201(c). The dissenters are
able to reach the contrary conclusion only because of their
readiness both to disaggregate the activities that may be
undertaken as part of an “investigation,” and to generalize
them. Of course “many police investigations are quite brief.”
Judge Garland’s Dissent at 8. And asking questions (of
14
people, databases, and real evidence) is certainly a part of
investigating. Id. at 8-9. But it would constitute an enormous
expansion of the gratuities provision to define “action” on a
“matter” as encompassing every question asked and answered,
or even every question that somehow parallels those an
official might ask as part of his official duty and whose
answer might entail a use of government resources. It would
bring under the clause a broad range of moonlighting
activities that in any way paralleled an official’s regular work
(and perhaps that of a broad spectrum of fellow workers, as
well). Thus, a Department of Justice lawyer who used a
government Westlaw account to look up a legal question for a
friend would be, in the dissenters’ view, “deci[ding]” a
“question” that might “be brought before [him].” This goes
too far—and the dissenters do not define the outer bounds of
their theory. See id. at 19.
At the very least, we believe that a police officer’s
ascertainment of answers to questions cannot amount to a
“decision or action” on an investigation unless the
ascertainment itself, or other activity in the real world, could
have some prospect of bringing about (or, for that matter,
squelching or redirecting) some sort of government
investigation. Certainly Valdes’s behavior is a far cry from
that found illegal in United States v. Carson, 464 F.2d 424 (2d
Cir. 1972), where the investigation at issue was already
underway, see id. at 426, or in United States v. Ahn, 231 F.3d
26 (D.C. Cir. 2000), where the police officer defendant visited
illegally operated massage parlors and, in lieu of reporting the
violations as duty required, secured payments from the
parlors’ operators, see id. at 32. Valdes’s queries belonged to
no such active or incipient police investigation.
15
The dissenters mistakenly assert or at least imply that our
decision will have two adverse consequences: first, that it will
narrow the range of available “sting” operations against
corrupt public officials, see Judge Garland’s Dissent at 9-11,
and second, that many “successful bribery prosecutions under
[§ 201(b)(2)(A)]—which depend upon the same definition of
‘official act’ as gratuity prosecutions—would not be possible”
after our decision, id. at 11. Both concerns are quite ill-
founded.
Our decision has no effect on law enforcement’s ability to
conduct “sting” operations. The government’s problem is not
that Valdes’s queries involved purely fictional people. Even
if Blake had sought license plate and warrant information
about real people, that fact would not have transformed his
five questions, or Valdes’s answers, or both, into a
government investigation, or any other kind of “matter,” etc.,
covered by § 201(a)(3); those actions had no relationship
whatsoever even to a fictional government investigation.
Conversely, inveigling a suspect into a “sting” investigation
can generate criminal behavior under our reading of the
statute. Had government agents created an apparent drug
investigation scenario, and had Blake asked Valdes to add or
subtract specific individuals to be questioned, and paid him
“for or because of” Valdes’s compliance, the “sting” character
of the events would not absolve Valdes.
It is equally alarmist to suggest that our decision will
somehow render bribery prosecutions difficult to pursue. It is
true that the bribery and gratuity provisions overlap in the
sense that one type of predicate act covered by both
provisions is an “official act” as defined in § 201(a)(3). See
§§ 201(b)(1)(A) & 201(b)(2)(A) (stating “official act”
predicate for bribery, for offeror and recipient of bribe,
16
respectively). But the bribery provisions cover two additional
predicate classes, one of which consists of acts “in violation of
the lawful duty of such official or person.” See
§ 201(b)(1)(C); see also § 201(b)(2)(C) (“in violation of the
official duty of such official or person”). Though the
dissenters attempt to cast doubt on this variation of the bribery
prohibition by noting that our court has not yet had occasion
to construe “official duty,” the many successful prosecutions
under that term make reasonably clear that it embraces the
dissenters’ numerous hypotheticals. See, e.g., Parks v. United
States, 355 F.2d 167 (5th Cir. 1965) (explicitly finding that
defendant’s arrangement to pay an Air Force sergeant to sell
names of new recruits constituted inducement to do an act in
violation of the sergeant’s lawful duty); see also United States
v. Cruz, 946 F.2d 122, 123 (11th Cir. 1991) (defendant
convicted under bribery statute for providing an investigative
target with “information relating to the IRS and FBI’s
investigations in exchange for money”); United States v.
Lanci, 669 F.2d 391 (6th Cir. 1982) (defendant convicted of
bribery and conspiracy for his role in arranging to bribe an
FBI employee to divulge confidential information, such as the
names of FBI informants). Cf. United States v. Gjieli, 717
F.2d 968, 974 (6th Cir. 1983) (holding (in the bribery context)
that the “official duty” provision is broader than the “official
act” provision in that only the latter requires that “the act
induced fall within the federal employee’s official function”).
Our decision therefore plainly continues to allow bribery
prosecutions when, for example, someone offers something of
value to induce an official to provide information in violation
of official duty.
We believe that § 201 thus reflects a kind of balance
between the bribery and gratuity violations. For the former, it
defines the predicate acts broadly, but the required
17
compensatory link narrowly; culpability attaches for “any
official act,” “any fraud,” or “any act in violation of [a] lawful
duty,” but the payment at issue must actually influence the act
or omission. See §§ 201(b)(1)-(2). For gratuities, the reverse
is true; the predicate acts are defined narrowly (excluding, for
instance, mere violation of an official duty), and the required
compensatory link is defined more broadly (“for or because
of,” even where the compensation has had no influence). See
§ 201(c)(1).
The dissenters suggest that the legislative history
undermines this analysis because of a House Report, H.R.
Rep. No. 87-748, at 19 (1961), observing that the gratuity
provision strikes at conduct with “the appearance of evil.”
Judge Garland’s Dissent at 23. But a generality of this sort
seems a weak basis for disregarding the differences in
statutory language. When Congress in 1962 reorganized the
bribery statute and added an illegal gratuity offense, it could
easily have made that provision perfectly mirror all of the
predicate acts listed in the older bribery provision; instead,
however, it chose to include only the “official act” predicate
of 18 U.S.C. § 201(b)(1) & § 201(c)(1) (1964), and not the
“fraud” or “official duty” predicates of 18 U.S.C. § 201(b)(2)-
(3) & § 201(c)(2)-(3) (1964). See 18 U.S.C. § 201(f) & § 201
(g) (1964). The textual distinction could not be clearer.
The dissenters then go on to reason that we do “public
officials no favor” by effectively eliminating “illegal gratuity”
as a lesser included offense of bribery, as it deprives juries of
the chance to give defendants a break. Judge Garland’s
Dissent at 24. This of course disregards all the cases where
the behavior meets the predicate act requirements of both
statutes. More importantly, our job is not to provide juries
with a broad menu of opportunities to punish an “evil act.”
18
We are to interpret the text of the statute as written by
Congress. Here, the bribery provision covers a larger set of
predicate acts than does the gratuity provision. Judicial
extension of those for the gratuity provision would disturb the
balance Congress chose—which, of course, it is free to
modify at any time. Cf. United States v. Leyva, 282 F.3d 623,
625 (9th Cir. 2002) (noting with regard to § 201(b)(2)(B),
which prohibits acts of fraud on the United States, that “[t]he
absence of any official act requirement is particularly pointed
in light of explicit ‘official act’ or ‘official duty’ language in
other subsections of § 201,” and that “[w]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.”) (internal citations
omitted) (internal quotation omitted).
* * *
Though not squarely raised, a set of arguments closely
related to that made by the dissenters requires examination:
That even if Valdes’s actions do not themselves constitute an
“investigation,” his queries and disclosures constitute
elements of—i.e., “decision[s] or action[s] on”—some future
investigation that might one day “be brought” before Valdes
or another public official.
In line with our previous discussion, simple interrogative
activity cannot qualify as a “decision or action on any
question, matter, cause, suit, proceeding or controversy”
merely because one can imagine that the activity would
qualify as such in some imagined investigation that might
conceivably “be brought” before some public official. Any
19
such notion appears to lack a limiting principle; in our
context, for example, it would encompass any WALES
search, even if the officer revealed the results to no one,
because that search might one day be relevant to a future
investigation. The more natural reading of the “may by law
be brought” language would recognize, however, that
“question[s], matter[s]” and the like typically can not “by law
be brought” before an official until the underlying issue has
surfaced to some degree. An obvious case would be a gratuity
for an NLRB member offered “for or because of” his hoped-
for ruling on a matter then (1) pending before an ALJ or (2)
extant in the form of a company’s or union’s initial charge.
Perhaps a live labor dispute with real potential for Board
intervention might be enough (we need not decide the point).
In all these cases the “matter” that “may by law be brought”
before the Board is at least nascent; it is not a pure fiction.
The same is true for the clause “may at any time be pending”;
an issue that is linked only by pure supposition to an
imaginary future matter (including an investigation) cannot
qualify as one that may, in any meaningful sense, be
“pending” before an official, now or at “any time” in the
future.
Exactly how developed an issue must be before it
qualifies as possibly pending or able to be brought by law is
something we need not decide. As already discussed, the
scenario presented to Valdes gave neither him, nor any other
police officer, any reason for official investigation of the
individuals for whom Blake sought license number or warrant
information. To say that in this context there was a “matter”
that might “by law be brought” before some official is to
render the statute an archetypical “meat axe.”
20
A related objection is that the answers that Valdes gave to
Blake—in a more general sense, the release of information—
constitute the requisite “decision[s] or action[s] on” some
stage of a hypothetical future investigation. This too has an
overbreadth problem—what question, on any topic, can we
say with confidence could never be part of any hypothetical
investigation?
Except in limited circumstances (of which those
discussed below are a clear example), we do not believe that a
release of information can constitute a “decision or action on
any question, matter, cause, suit, proceeding or controversy.”
Sun-Diamond itself addressed the question of whether “a
group of farmers would violate § 201(c)(1)(A) by providing a
complimentary lunch for the Secretary of Agriculture in
conjunction with his speech to the farmers concerning various
matters of USDA policy.” 526 U.S. at 407. Those policy
matters were undoubtedly “question[s] [or] matter[s]” that
were “pending, or which may by law be brought.” Yet Sun-
Diamond at least indirectly rejects the notion that sharing
information about them—likely including at least a glimpse
into some hitherto non-public features of the agency’s
decision-making—would violate the statute.
There are, of course, procedures, of which the most
prominent are those established by the Freedom of
Information Act, under which officials process requests for
the release of documents or non-document information, and in
doing so take a “decision or action on [a] question, matter,
cause, suit, proceeding or controversy.” Thus, for example, a
gratuity given for or because of the disposition of a FOIA
request (its grant or denial, or the acceleration or retardation
of its grant or denial, or any skewing of the terms of its grant
or denial) must run afoul of the statute. But it cannot follow
21
that every question-and-answer between an official and a
citizen can be brought within the statute by simply
characterizing it as an “action on” a matter that “may by law
be brought” before a hypothetical FOIA official. (Many such
Q-and-As, including perhaps those of Blake and Valdes,
however, might qualify as acts “in violation of the official
duty” of the official, for purposes of the bribery provision.)
Again, any construction embracing such queries would smack
of the meat axe. Further, in such a reading the statute would
punish the disclosure of public information more severely
than other, more targeted statutes punish the disclosure of
confidential information. Compare the statute here, 18 U.S.C.
§ 201(c)(1)(B) (permitting imprisonment of no more than two
years), with 18 U.S.C. § 1905 (permitting imprisonment of no
more than one year for disclosing certain types of confidential
information acquired by an officer in the course of
employment). Thus, unless there is something more than the
ubiquitous abstract possibility that events might trigger a
statutorily prescribed disclosure process, an information
disclosure is not in itself a “decision or action on [a] question,
matter, cause, suit, proceeding or controversy” that “may by
law be brought” before a public official. While the exact
location of this line may prove difficult, the colloquies
between Valdes and Blake fall far short of being even a start
of the sort of process exemplified by FOIA.
* * *
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
22
before any public official,” as required by 18 U.S.C. § 201,
the judgment of conviction is
Reversed.
KAVANAUGH, Circuit Judge, with whom Senior Circuit
Judge WILLIAMS joins, concurring: I join the majority opinion
and add two brief points.
First, the facts and circumstances of this case are unusual,
and as the majority opinion indicates, the Court’s ruling on
Valdes’s case will not thwart future prosecutions of money-for-
information-disclosure. After today’s decision, just as before
today’s decision, a covered public official who in violation of
official duty corruptly provides information in return for
something of value commits a federal crime: bribery.
The amount of ink spilled on this case is largely a result of
the jury’s divided verdict, as well as small but key differences
in the textual scope of the bribery and illegal gratuities statutes.
Valdes was indicted solely for bribery – namely, disclosing
certain information in exchange for a few hundred dollars. At
trial, the prosecutor forcefully argued that the defendant was
guilty of bribery, stating in his closing argument, for example,
that “For a few hundred dollars, ladies and gentlemen, this
police officer was bought, and those few hundred dollars were
bribes.” At the close of evidence, the district judge properly
found that the evidence legally sufficed for the jury to find
Valdes guilty of bribery – that Valdes in violation of his official
duty disclosed information in exchange for money. But then the
jury was instructed on the bribery and illegal gratuities statutes.
Instructed on both statutes, the jury split the difference by
acquitting on bribery and convicting on illegal gratuities (illegal
gratuities carries lighter penalties than bribery). That divided
verdict has created a problem on appeal because the plain text of
the bribery statute actually applies to a broader range of
activities – such as disclosing information – than does the
gratuities statute. In other words, even though a jury lawfully
could have found Valdes guilty of bribery (as the district judge
concluded), we obviously cannot review the jury’s acquittal on
that charge. And even though the jury convicted Valdes of
illegal gratuities, the majority opinion correctly concludes that
2
conviction cannot stand because Valdes’s actions were not
covered by the text of the gratuities statute (a conclusion
supported by the Supreme Court’s strong and unanimous
statements in Sun-Diamond regarding the gratuities statute).
The background of this case underscores a key practical
consequence of today’s decision: In the typical future
prosecution of money-for-information-disclosure, the jury will
be instructed only on bribery – and the scenario in which a
defendant’s case slips through the cracks because of a split-the-
difference jury verdict will not recur.
Second, given that opinions in cases like this one often are
relied on by the hundreds of thousands of covered federal
officials and those who advise them on ethics issues, another
point warrants mention. Both the bribery and gratuities statutes
require the prosecution to show some nexus between a gift and
a covered official action. But public officials would be foolish
to assume the statutes really allow them that much room to
accept gifts. When they become aware of questionable gifts to
a public official, investigators tend to turn over many stones
trying to determine whether the gifts were linked to the public
official’s actions. And even without direct smoking-gun
evidence, prosecutors can prove such links with only
circumstantial evidence. Covered public officials who want to
stay clearly on the safe side of the criminal-law line (not to
mention comply with the phalanx of non-criminal regulatory
provisions in this area) therefore would be well-advised not to
accept certain gifts in the first place, rather than pinning their
hopes on after-the-fact arguments premised on statutory terms
such as “in return for” or “official act” or “official duty.” In
other words, absent an authorization or exception, public
officials might decline monetary gifts and ensure that trips,
tickets, and the like are paid for by the officials themselves, by
the government when so allowed, or (in the case of elected
3
officials) by a campaign or political committee when so allowed.
That’s certainly simpler, cleaner, and cheaper than attempting to
argue afterwards that a particular gift was not linked to an
official action.
KAREN LECRAFT HENDERSON, Circuit Judge, with whom
RANDOLPH, Circuit Judge, joins, dissenting:
In my dissent from the vacated panel decision, see United
States v. Valdes, 437 F.3d 1276, 1282-88 (D.C. Cir. 2006), I
previously expressed my profound disagreement with the
majority’s interpretation of the meaning of “official act” as
defined in 18 U.S.C. § 201(a)(3). While I fully join Judge
Garland’s excellent dissent, I write separately to elaborate on
two points I made earlier.
First, and most important, stare decisis requires us to comply
with the United States Supreme Court’s broad interpretation of
the term “official act” as set forth in United States v. Birdsall,
233 U.S. 223 (1914). In Birdsall, the precursor statute to section
201(a)(3) 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-
10 (1909). The Supreme Court held that an “official action”
need not be “prescribed by statute” and includes an action
“clearly established by settled practice,” Birdsall, 233 U.S. at
231, declaring that “[e]very action that is within the range of
official duty comes within the purview of” the statute, id. at 230.
It is hard to imagine a broader statutory reach than the language
of the precursor statute.1 And we are likewise bound to give the
successor statute—containing almost verbatim the all-inclusive
language—the same reach until and unless directed to do
otherwise. See Welch v. Tex. Dep’t of Highways & Pub.
Transp., 483 U.S. 468, 478-79 (1987) (“The rule of law depends
in large part on adherence to the doctrine of stare decisis. . . . It
follows that any departure from the doctrine of stare decisis
1
Nevertheless, the current version adds “suit” and “controversy”
to the list of undertakings. See 18 U.S.C. § 201(a)(3).
2
demands special justification.” (internal quotation omitted)).
The Supreme Court has never expressly overruled, watered
down or otherwise retreated from Birdsall.2 Nor do I believe the
Court has done so sub silentio in United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398 (1999).
Sun-Diamond is a spectacular red-herring in this case. Sun-
Diamond addressed “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. The Court rejected the idea that section 201(c)(1)(A)
“requires only a showing that a gift was motivated, at least in
part, by the recipient’s capacity to exercise governmental power
or influence in the donor’s favor without necessarily showing
that it was connected to a particular official act,” id. at 405-06
(emphasis in original) (internal quotation omitted), holding
instead that “[t]he insistence upon an ‘official act,’ carefully
defined, seems pregnant with the requirement that some
particular official act be identified and proved,” id. at 406
(emphasis added). The Court did not, however, rule on the
statutory definition of “official act” or even mention Birdsall.
It simply referenced section 201(a)(3) in dicta after
acknowledging that the “official act” required by section
201(c)(1)(A) could produce “peculiar results,” such as
criminalizing the President’s receipt of a sports jersey for a
2
Indeed, our court and several of our sister circuits have over the
years cited Birdsall’s broad language approvingly. See United States
v. Muntain, 610 F.2d 964, 967-68 n.3 (D.C. Cir. 1979) (endorsing
Birdsall’s broad language notwithstanding its inapplicability to
challenged actions); see also United States v. Parker, 133 F.3d 322,
326 (5th Cir. 1998); United States v. Gjieli, 717 F.2d 968, 974-75 (6th
Cir. 1983); United States v. Carson, 464 F.2d 424, 433-34 (2d Cir.
1972); Wilson v. United States, 230 F.2d 521, 524 (4th Cir. 1956).
3
ceremonial White House visit, the Education Secretary’s receipt
of a school baseball cap for a school visit or the Agriculture
Secretary’s complimentary lunch for his speech to farmers. Id.
at 407. The Court explained, “[T]hose actions—while they are
assuredly ‘official acts’ in some sense—are not ‘official acts’
within the meaning of the statute,” id., and concluded, “[W]hen
the violation is linked to a particular ‘official act,’ it is possible
to eliminate the absurdities through the definition of that term,”
id. at 408 (emphasis in original). Other than iterating the term’s
full statutory definition, the Court added nothing to the
“definition of that term.”3 Id. at 407-08. And it most certainly
did not jettison precedent that is over ninety years old and intact.
The majority’s summary dismissal of Birdsall, Maj. Op. at 7, in
favor of an insupportable application of Sun-Diamond violates
our duty to faithfully apply precedent. See Agostini v. Felton,
521 U.S. 203, 237 (1997) (“[I]f a precedent of [the Supreme
Court] has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving
to [the Supreme Court] the prerogative of overruling its own
decisions.” (internal quotations omitted) (alteration added)); cf.
Eberhart v. United States, 126 S. Ct. 403, 407 (2005)
(applauding Seventh Circuit for following Supreme Court
precedent as “prudent course” rather than either “forc[ing] the
issue by upsetting what [it] took to be our settled precedents” or
“bur[ying] the issue by proceeding in a summary fashion”).
3
On this point, the majority’s conclusion that “the Sun-Diamond
Court reached its conclusion ‘through the definition of [the] term
[‘official act’],’” Maj. Op. at 8 (quoting Sun-Diamond, 526 U.S. at
408), and “in particular, through [the] clause . . . ‘on any question,
matter, cause, suit, proceeding or controversy,’” id. at 8 (quoting 18
U.S.C. § 201(a)(3)) (final alteration added), is flatly wrong.
4
Not only can the Sun-Diamond dicta not bear the weight the
majority saddles it with, the dicta does no more than
acknowledge “the venerable maxim de minimis non curat lex
(‘the law cares not for trifles’) [which] is part of the established
background of legal principles against which all enactments are
adopted, and which all enactments (absent contrary indication)
are deemed to accept.” Wis. Dep’t of Rev. v. William Wrigley,
Jr., Co., 505 U.S. 214, 231 (1992) (last two emphases added).
That is, the “absurdities” described in Sun-Diamond constitute
nothing other than de minimis exceptions.4 See Sun-Diamond,
526 U.S. at 408.
The second point is that this is a simple—but far from
inconsequential—case. The man on the street grasps what my
colleagues in the majority so inexplicably resist: you cannot
lawfully give money to a law enforcement officer for
performing a function of his office. I respectfully dissent.
4
Can anyone—including my colleagues in the majority—seriously
contend that the Supreme Court would have added to its list of
“absurdities” cash payments totaling at least $400 to Valdes for his
actions?
GARLAND, Circuit Judge, with whom Circuit Judges SENTELLE,
HENDERSON, RANDOLPH, and BROWN join, dissenting:
A guy walks into a bar. He meets a police detective, asks
him to search a law-enforcement database for the names and
home addresses of individuals holding certain Virginia
automobile license plates, and then hands the detective some
cash. He gives the detective more cash after the detective
provides the information, and still more as an “incentive” to
determine whether a “friend” of his has an outstanding arrest
warrant in New York. The guy -- who wears a gold Rolex,
drives a leased Mercedes-Benz, will meet only at night at a local
gas station, and advises the detective to “read between the lines”
-- tells the detective that he is a “federal judge.” He says that he
wants the information because “these f***ing people owe me a
lot of money.”
The detective cannot know who the “judge” really is, or
why he wants the information. He cannot know whether the
“judge” is a loan shark seeking to find and punish his debtors, or
whether he wants the information because the individuals are his
associates in a criminal enterprise, police officers who are
surveilling him, witnesses against him, or targets of identity
theft. The detective is wary: he uses another officer’s code to
access the restricted database and then runs the license number
of the “judge’s” own Mercedes, learning only that the Mercedes
is leased. Nonetheless, in the end he takes the cash -- repeatedly
-- and gives the “judge” the information he seeks.
For these acts, a jury convicted the detective of accepting an
illegal gratuity -- to put it bluntly, a “payoff.” Today, the court
reverses the conviction on the ground that accepting such a
gratuity does not constitute a crime. Because the court’s
decision is wrong, and because it undermines the prosecution of
public corruption, I respectfully dissent.
2
I
Both the facts and the law relevant to this case are
straightforward.
A
The defendant is the aforementioned police officer,
Metropolitan Police Department (MPD) detective Nelson
Valdes. The “judge” is William Blake, an undercover informant
for the FBI. After meeting Detective Valdes at a District of
Columbia nightclub, Blake gave Valdes several Virginia license
plate numbers and asked him to find out the names and
addresses of the holders of those plates. Blake told Valdes that
he would “take care of [him],” and that Valdes could “make
[himself] a few dollars.” Joint Exhibit Appendix (J.E.A.) 109,
111. Upon leaving the nightclub, Blake handed Valdes a $50
bill.
After taking the precautions noted in the introduction to this
opinion, Valdes ran the license plate numbers through the
Washington Area Law Enforcement System (WALES), a
restricted police database that officers are authorized to use for
law enforcement purposes only,1 and that serves as an interface
to the national law enforcement database known as the National
1
See MPD General Order 302.6, at 6 (J.E.A. 94) (“Information
from WALES [and] NCIC . . . shall be used for official legitimate law
enforcement purposes only.”); id. (stating that MPD employees
“making inquiries or receiving information on the Wales or [Regional
Arrest Information Network] terminal[s] shall take extraordinary
precautions to ensure that this information is not observable to
unauthorized persons”); United States v. Jordan, 316 F.3d 1215, 1222
(11th Cir. 2003) (“Access to . . . NCIC is circumscribed by strict rules
requiring that [it] be utilized for law enforcement purposes only.”).
3
Crime Information Center (NCIC).2 Valdes told Blake that he
would have to run the plates “one at a time,” because “they
monitor this stuff.” J.E.A. 111. Valdes’ WALES searches
produced the names, home addresses, and Social Security
numbers of the license plate holders, all of which were fictions
that the FBI had previously entered into the database in
preparation for the undercover operation. Valdes gave the
names and home addresses to Blake, who gave Valdes $200 on
one occasion and $100 on another. Blake also asked Valdes to
find out whether a “friend” had an outstanding arrest warrant in
New York, giving him another $100 as “a little more incentive.”
J.E.A. 121-22; Joint Appendix (J.A.) 281. NCIC indicated that
there was no outstanding warrant for Blake’s “friend” -- also a
fiction -- and Valdes so advised Blake. J.E.A. 127 (recording of
Valdes informing Blake that, “[a]ccording to the NCIC check,
nothing comes back”).
2
WALES “contains criminal history information regarding
arrests, address information, physical description (race, sex, date of
birth, height, weight, any scars or markings), police and correctional
identification numbers, and warrant information. It also contains
motor vehicle information (driver’s licenses, vehicle registrations,
vehicle identification numbers), social security numbers, aliases,
fingerprint classifications, warnings about particular persons, and
attempts to locate both missing cars and people. In addition,
‘WALES’ interfaces with several other law enforcement records
systems, including the National Law Enforcement Telecommunication
System (‘NLETS’), which allows an exchange of information between
individual State databases and is maintained by the Federal Bureau of
Investigation (‘FBI’); the Criminal Justice Information System
(‘CJIS’), which contains arrest information from the police district[s]
. . . , and the National Crime Information Center (‘NCIC’), which is
maintained by the FBI.” United States v. Hutchinson, 408 F.3d 796,
799 (D.C. Cir. 2005).
4
For the foregoing conduct, Valdes was charged with
accepting a bribe in violation of 18 U.S.C. § 201(b)(2)(A). The
jury acquitted him of that charge, but convicted him of the lesser
included offense of accepting an illegal gratuity in violation of
18 U.S.C. § 201(c)(1)(B). As the Supreme Court explained in
United States v. Sun-Diamond Growers, the difference between
bribery and gratuity is one of intent. See 526 U.S. 398, 404-05
(1999). To be guilty of accepting a bribe, one must “corruptly”
receive a payment “in return for . . . being influenced in the
performance of any official act.” 18 U.S.C. § 201(b)(2)(A).
One can be guilty of accepting an illegal gratuity, however,
simply for accepting a payment “for or because of” the
performance of an official act. Id. § 201(c)(1)(B). In other
words,
for bribery there must be a quid pro quo -- a specific
intent to give or receive something of value in
exchange for an official act. An illegal gratuity, on the
other hand, may constitute merely a reward for some
future act that the public official will take (and may
already have determined to take), or for a past act that
he has already taken.
Sun-Diamond, 526 U.S. at 404-05. It is from his conviction for
accepting an unlawful gratuity that Valdes appeals.
B
The gratuity subsection of section 201 makes it a crime for
a “public official” to “receiv[e]” 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).
There is no dispute that Valdes was a public official (statutorily
defined as including employees of the District of Columbia, id.
§ 201(a)(1)), and that he personally accepted something of value
5
($450) for or because of the acts he took at Blake’s request. The
only issue is whether those acts constituted “official act[s]”
within the meaning of the statute.
Subsection 201(a)(3) defines “official act” -- for purposes
of both the gratuity and the bribery subsections -- to mean “[1]
any decision or action[, 2] on any question, matter, cause, suit,
proceeding or controversy, which [3] 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.” Id. § 201(a)(3). Valdes’ conduct
satisfies all three parts of the statutory definition. The following
discussion outlines the essential points of the analysis; the areas
of disagreement with the opinion of the court are discussed in
succeeding Parts.
First, Valdes made a “decision” -- or, even more clearly,
took an “action.” He decided to and did initiate WALES checks
of the license plate numbers Blake gave him. He did the same
regarding the name Blake gave him for the purpose of
conducting a warrant search.
Second, the action that Valdes took was on a “question [or]
matter.” However vague those terms may be, there can be no
dispute that a “matter” includes an “investigation.” See Oral
Arg. Tr. at 70-71 (concession by Valdes’ counsel that a “matter”
includes an “investigation”). Indeed, another section of the
same chapter of the United States Code, which bars a former
official from making appearances in connection with a
“particular matter” in which the official had participated while
in government, expressly defines “particular matter” as
including “any investigation.” 18 U.S.C. § 207(i)(3); see also
id. § 205(h) (defining a “covered matter” under another Code
provision, § 205, as including an “investigation”).
6
Finally, an investigation is clearly a matter that “may at any
time be pending, or [that] may by law be brought before” Valdes
in his “official capacity [or] place of trust or profit.” Valdes was
a police detective whose job, by definition, was to conduct
investigations. Indeed, in the document that Valdes signed to
gain access to WALES, he stated that he intended to use the
database to “conduct criminal investigations and background
checks.” J.E.A. 83; see also J.E.A. 84. And as noted above,
when Valdes used WALES, he was using a restricted database
to which he had access only by virtue of his status as a police
officer.
Much of this is common ground, although the court reaches
its conclusions by a different route. According to the court, “the
words ‘question’ and ‘matter’ are known by the company that
they keep,” Court Op. at 9, and hence those more general terms
must be interpreted to reflect the same “class of processes” as
the other terms in the six-term series listed in the definition of
official act, id. at 13. There is a reasonable argument that the
series was instead intended to broaden the statutory definition,
rather than to limit it. See United States v. Valdes, 437 F.3d
1276, 1284-85 (D.C. Cir. 2006) (Henderson, J., dissenting). But
in any event, the court concedes that “a police investigation is in
the same class of processes as a ‘question, matter, cause, suit,
proceeding, or controversy.’” Court Op. at 13. Thus, even on
the court’s view of the appropriate approach to interpreting
subsection 201(a)(3), an investigation constitutes an “official
act.” See id. at 13.
The court further insists that the “six-term series refers to a
class of questions or matters whose answer or disposition is
determined by the government.” Id. at 9. I am not certain what
work this formulation performs beyond that already
accomplished by the express requirement of subsection
201(a)(3) that the question or matter must be one that “may at
7
any time be pending, or [that] may by law be brought before any
public official, in such official’s official capacity.” But even
accepting the court’s formulation, there is still no dispute as to
the conclusion. As the court states: “‘Should the police
investigate this person?’ . . . is clearly a question answered by
the government.” Court Op. at 13. And “[p]roviding or
receiving gifts for, or because of, decisions to initiate,
accelerate, retard, conclude, or skew [a police] investigation is
unquestionably conduct prohibited by § 201.” Id. at 13.
Having identified common ground, the next Part addresses
the field of disagreement: whether there was sufficient evidence
for a jury to find that Valdes’ actions amounted to an
investigation and therefore an official act.
II
Although the court and I agree that an investigation is an
“official act” within the meaning of subsection 201(a)(3), the
court holds that Valdes’ conduct cannot -- as a matter of law --
constitute an investigation. That holding is untenable.
A
Viewing the “evidence in the light most favorable to the
government” as we must, United States v. Alexander, 331 F.3d
116, 127 (D.C. Cir. 2003) (internal quotation marks omitted),
the actions that Detective Valdes took in this case are the routine
steps that police officers take in a wide variety of investigations.
Running license plate numbers and checking for outstanding
warrants provide important information about both suspects and
witnesses, often helping the police to separate one from the
other. That is why Valdes sought access to WALES in the first
place -- to “conduct criminal investigations and background
checks.” J.E.A. 83. Indeed, the case law of the District of
8
Columbia is replete with references to the use of WALES for
these and other investigative purposes.3
1. The court dismisses the acts taken by Valdes as the
“ascertainment of answers” to a few questions, Court Op. at 14,
and as “simple interrogative activity,” id. at 18. But many
police investigations are quite brief. A WALES search may take
only a few minutes, yet in that interval it can eliminate a suspect
or confirm that he is a fugitive.4 Some investigations begin and
end with a single step: the running of tags. That step may tell a
traffic officer that the person he has stopped is wanted for a
crime,5 or that he is just a minister on his way to church. The
brevity of an inquiry, and the limited number of steps required
to achieve its object, cannot alone be enough -- certainly not as
3
See, e.g., Hutchinson, 408 F.3d at 797-802; Dorman v. District
of Columbia, 888 F.2d 159, 160-61 (D.C. Cir. 1989); Duggan v.
District of Columbia, 884 A.2d 661, 664 (D.C. 2005); Thomas v.
United States, 731 A.2d 415, 418 (D.C. 1999); Duncan v. United
States, 629 A.2d 1, 1 n.1 (D.C. 1993).
4
See, e.g., Hutchinson, 408 F.3d at 801 (“By confirming that
Hutchinson either was or was not providing false identification
information to the police, a ‘WALES’ check ultimately could assist
Detective Hilliard in evaluating whether or not Hutchinson was the
stabbing suspect.”); Thomas, 731 A.2d at 418 (noting that the officer
began to suspect that the defendant had falsified his identity after
running a WALES check); Duncan, 629 A.2d at 1 n.1 (stating that a
WALES check disclosed that the suspect’s license had been
suspended).
5
See, e.g., Anderson v. Alameida, 397 F.3d 1175, 1178 (9th Cir.
2005) (defendant placed “in custody as a fugitive from justice” after
NCIC check revealed an outstanding arrest warrant); Childress v.
United States, 381 A.2d 614, 616 (D.C. 1977) (defendant arrested
after WALES check revealed outstanding warrant).
9
a matter of law -- to rule it out as an investigation covered by the
statute.6
This analysis neither “disaggregate[s]” nor “generalize[s]”
the steps taken in an investigation, nor does it require holding
that “every question asked and answered” is an “action” on a
“matter.” Court Op. at 13, 14. If Valdes had been ordered by a
superior officer to make the WALES inquiries he did, no one
would doubt that he was conducting an “investigation.” But if
Valdes’ conduct would constitute an official act under those
circumstances, then the fact that he acted in response to an
outsider’s request rather than an instruction from a supervisor
cannot save him: “official act” is defined in terms of a “decision
or action,” regardless of who requests it, and the statute only
requires that the “decision or action” be on a “question [or]
matter” that “may at any time be pending, or [that] may by law
be brought before” him in his official capacity. 18 U.S.C. §
201(a)(3) (emphasis added). Moreover, no one -- neither the
defendant nor the court -- disputes that an officer would be
liable under section 201 if he accepted money as a reward for
not running a WALES search on a driver’s license during a
traffic stop. See Oral Arg. Tr. at 12-13; Court Op. at 13.7
The court suggests that another flaw in the government’s
case is that Valdes’ investigation did not involve “activity in the
real world,” that it was “imaginary,” and that it was “a pure
6
Moreover, the only reason that Valdes’ conduct ended when it
did was that the government arrested him. Valdes had shown no
indication that he was unwilling to continue to conduct requested
WALES searches -- or take other investigatory steps -- indefinitely.
7
Cf. United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000)
(upholding an MPD officer’s guilty plea for accepting an illegal
gratuity for not reporting illegal activity).
10
fiction.” Court Op. at 14, 19. In one sense that is, of course,
true. The case involved an undercover “sting” operation in
which each of the players -- other than the defendant -- was
indeed fictitious. But such operations are a staple of bribery
prosecutions,8 and the court takes pains to assure us that its
decision will have “no effect on law enforcement’s ability to
conduct ‘sting’ operations,” and that the fact that the case
involved a sting is irrelevant to its analysis. Court Op. at 15.
Once the fact that the case involved a sting is removed from
the equation, however, it is unclear what the court means when
it says that “Valdes’s queries belonged to no . . . active or
incipient police investigation,” id. at 14, that they did not
amount to “some sort of government investigation,” id., and that
the issue was “linked only by pure supposition to an imaginary
future matter,” id. at 19. The court does not attempt to define
what would constitute an “investigation,” saying only that the
matter must be “at least nascent” and “the underlying issue
[must have] surfaced to some degree.” Id. at 19. But the matter
before Valdes was more than nascent and had already surfaced.
His conduct was not linked to an “imaginary future”
investigation; it was itself an actual investigation. Valdes
conducted a background investigation on five individuals. This
was a matter that Blake actually “brought before” Valdes, that
was “pending” before him in the present, and upon which he
“act[ed]” in the present tense. 18 U.S.C. § 201(a)(3). With
respect, it is the court and not the dissent that does “not define
8
See, e.g., United States v. Washington, 106 F.3d 983 (D.C. Cir.
1997) (bribe to police officer to provide “protection” for a fictitious
drug dealer); United States v. Neville, 82 F.3d 1101 (D.C. Cir. 1996)
(bribe to jail guard from a fictitious drug dealer); United States v.
Kelly, 748 F.2d 691 (D.C. Cir. 1984) (“Abscam” case, involving bribe
to congressman to introduce private immigration bill for fictitious
alien).
11
the outer bounds of [its] theory.” Court Op. at 14; see id. at 19
(“Exactly how developed an issue must be before it qualifies as
possibly pending or able to be brought by law is something we
need not decide.”).
In a related vein, the court argues that “the scenario
presented to Valdes gave neither him, nor any other police
officer, any reason for official investigation of the individuals
for whom Blake sought license number or warrant information.”
Id. at 19. But once the sting is removed from the scenario, it is
clear that the reason there was no “reason” is that Valdes would
not have investigated the license number holders but for Blake’s
unlawful request. Removing such a case from the definition of
“official act,” however, strikes at the core of bribery
prosecutions under subsection 201(b)(2)(A), which punishes
public officials who take official acts that they would have no
reason to take but for being influenced by the payment of a
bribe. If the court’s argument were correct, successful bribery
prosecutions under that provision -- which depend upon the
same definition of “official act” as gratuity prosecutions --
would not be possible.
2. Nor is there any doubt that the investigation undertaken
by Valdes was a police investigation -- that is, an investigation
undertaken by Valdes in his “official capacity.” 18 U.S.C. §
201(a)(3). At one point in its opinion, the court alludes to the
practice of “moonlighting,” see Court Op. at 11, a word of
multiple connotations, not all of which are benign.9 But Valdes
did not undertake his efforts for Blake outside the scope of his
9
Compare Oxford English Dictionary Online,
http://www.oed.com (defining “moonlighting” as “[t]he practice of
doing paid work in addition to one’s regular employment”), with id.
(alternatively defining the term as “[t]he performance of an illicit
action by night”).
12
official employment. He did not merely “parallel[]” his “regular
work,” Court Op. at 14, by running down license plates and
warrants during his off hours, traveling to multiple motor
vehicles departments or courthouses to learn the information as
a member of the general public would have to do. Instead, he
conducted the searches on his police computer by accessing
WALES, a database that he knew full well could be used only
for official business. See J.E.A. 87 (Valdes’ personal
acknowledgment, on a WALES training questionnaire, that the
“[u]se of the WALES and NCIC systems is for criminal Justice
purpose[s],” and that “[i]mproper use or dissemination of
information contained within these systems could result in,”
inter alia, criminal prosecution); J.E.A. 111 (recording of Valdes
telling Blake that he could only run one search at a time “’cause
they monitor this stuff”); sources cited supra note 1 (regulations
restricting WALES to “official legitimate law enforcement
purposes only” and warning MPD employees to “take
extraordinary precautions to ensure that this information is not
observable to unauthorized persons”). Indeed, a tape of a
telephone call makes clear that Valdes spoke to Blake from the
police department, while he was in the process of entering the
license plate numbers into the computer (the clicks are audible).
J.E.A. 127.
Moreover, the steps taken by Detective Valdes are not only
the kinds of investigative steps that police officers legally take;
they are also the kinds of investigations that criminals have paid
police officers to take for their own illegal purposes. A drug
crew may want to know, for example, whether cars that cruise
its neighborhood belong to rival gang members -- or to
undercover officers.10 Its leaders may want to learn the home
10
See, e.g., United States v. Sedoma, 332 F.3d 20, 27-28 (1st Cir.
2003); United States v. Herrera, No. 04-10665, 2006 WL 684432, at
*1 (5th Cir. Mar. 17, 2006).
13
addresses or identities of witnesses who could testify against
them at a trial or before a grand jury.11 They may want to know
whether they or their associates have outstanding warrants.12
And a gang interested in identity theft may simply want the
names, addresses, Social Security numbers, and other personal
identifiers that WALES and similar law enforcement databases
hold. See supra note 2 (listing personal data contained in
WALES and associated databases). Although it turns out that
none of these were the motives of the “judge” in this case,
Valdes could not have known that. And in any event, the
corruptness of the payor’s or payee’s motive is not an element
of the gratuity offense. See Sun-Diamond, 526 U.S. at 404-05.
3. Finally, I note the defendant’s argument that his WALES
searches cannot constitute an investigation because they yielded
only publicly available information. The court does not adopt
that argument, and rightly so. The argument fails for three
reasons.
First, nothing in the statutory language requires that an
“official act” involve information that is not otherwise publicly
available. And, in fact, many police investigations involve what
might be called “public source” information: the observation of
cars on public streets, the surveillance of suspects in public
places, the inspection of trash cans at the curb, and the
questioning of neighbors and other witnesses. Although all
these things can be done by private investigators, they are within
the scope of section 201 when done by the police.
11
See, e.g., Sedoma, 332 F.3d at 22, 27; Gordon v. Borough of
Middlesex, 632 A.2d 1276, 1278 (N.J. Super. Ct. App. Div. 1993).
12
See, e.g., Herrera, 2006 WL 684432, at *1; United States v.
Ruiz, 905 F.2d 499, 502 (1st Cir. 1990).
14
Second, it is not at all certain that the information Blake
gave Valdes was publicly available. Although Valdes contends
that a private investigator could have obtained the home
addresses of the license plate holders by going to Virginia’s
Department of Motor Vehicles, a federal statute suggests
otherwise. See 18 U.S.C. § 2721 (limiting disclosure of personal
information, such as drivers’ addresses, contained in state motor
vehicle records).13
Third, the information that Valdes disclosed was in fact
“confidential” in a much more important sense. Valdes did not
just advise Blake of the home addresses and warrant status of
certain individuals: he told him what the government’s files held
on those subjects. See, e.g., J.E.A. 127 (recording of Valdes
notifying Blake that, “[a]ccording to the NCIC check, nothing
comes back” with respect to the outstanding warrant (emphasis
added)). That information is not available to an ordinary citizen
or private investigator because WALES is accessible only to law
enforcement officers on official business. See sources cited
supra note 1. And knowing what the government’s files say has
a value of its own, beyond the mere efficiency of information
acquisition. When a police officer stops a car in the District of
Columbia, he can check the driver’s status by accessing
WALES; he cannot, however, drive down to Virginia or up to
New York to check public records. For $450, Blake learned not
just whether his “friend” had a warrant, but whether WALES
13
Valdes contends that, because Blake said the holders owed him
money, the data would have been available under a statutory exception
for use “in anticipation of litigation.” 18 U.S.C. § 2721(b)(4). But
Blake did not mention litigation, and courts have read the exception
narrowly. See, e.g., Wemhoff v. District of Columbia, 887 A.2d 1004,
1011 (D.C. 2005) (holding that subsection (b)(4) can be invoked only
when there is a bona fide investigation relating to actual or “likely”
litigation).
15
would show that he had a warrant. Had Blake been a drug
dealer in the District, this would have been uniquely valuable
information: knowing that WALES did not show his “friend”
was wanted would make that friend a better bet as a drug
courier, since he would be less likely to be arrested and searched
after a traffic stop.
In sum, there is no ground for excluding Valdes’
investigation from the scope of the gratuity offense.
B
The court asserts that two precedents compel its conclusion
that Valdes’ conduct falls outside the coverage of subsection
201(c). Neither, however, supports that result.
1. In United States v. Sun-Diamond Growers, the Supreme
Court reversed a trade association’s conviction under subsection
201(c)(1)(A) for giving Agriculture Secretary Michael Espy
illegal gratuities (including sports tickets, luggage, and meals).
The trial judge had charged the jury that it could find the
association guilty if it “provided Espy with unauthorized
compensation simply because he held public office,” and that
the “government need not prove that the alleged gratuity was
linked to a specific or identifiable official act or any act at all.”
526 U.S. at 403. The Court held that the statutory phrase, “for
or because of any official act performed or to be performed,”
means “for or because of some particular official act” and not
“for or because of official acts in general.” Id. at 406. Were
that not the case, the Court said, the statute “would criminalize,
for example, token gifts” given to officials “based on [their]
official position[s] and not linked to any identifiable act.” Id. at
406-07. These could include, the Court suggested, a sports
jersey given to the President by an athletic team during a White
House visit, a school cap given to the Education Secretary on the
16
occasion of his visit to a high school, or a complimentary lunch
for the Agriculture Secretary in conjunction with his speech to
a group of farmers. Id. Requiring the government to prove an
identifiable act, the Court said, would prevent such results.
In dictum, the Sun-Diamond Court worried that an
“identifiable act” requirement might still not wholly solve the
problem, because such gifts could “be regarded as having been
conferred, not only because of the official’s position as President
or Secretary,” but also “for or because of” the official acts of
receiving the sports team, visiting the high school, or speaking
to the farmers. Id. at 407. “The answer to this objection,” the
Court said, is that those actions “are not ‘official acts’ within the
meaning of the statute,” which “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 official, in such
official’s official capacity, or in such official’s place of trust or
profit.’” Id. (quoting 18 U.S.C. § 201(a)(3)).
Nothing in either Sun-Diamond’s holding (that an illegal
gratuity conviction requires a connection between the gratuity
and an identifiable act) or its dictum (that activities such as
receiving a sports team, visiting a high school, or speaking to
farmers do not constitute “official acts” within the meaning of
the statute) precludes our finding sufficient evidence to support
Valdes’ conviction. There is certainly “music” in Sun-Diamond
that reflects a desire to rein in the broad language of section 201
(though there is contrapuntal music in United States v. Birdsall,
233 U.S. 223, 230 (1914), as Judge Henderson has pointed out,
see Valdes, 437 F.3d at 1284, 1287 n.10 (Henderson, J.,
dissenting)). The Supreme Court’s preference for interpreting
the statute as a “scalpel” rather than a “meat axe,” cited in this
court’s opinion in the instant case, is one such melody. Sun-
Diamond, 526 U.S. at 412, quoted in Court Op. at 8. But Sun-
17
Diamond did not suggest that such narrowing should be
accomplished arbitrarily. Rather, as the Supreme Court said
expressly, the way to appropriately accomplish that end is to
require that the official’s action fall within the statutory
definition of “official act.” “[W]hen the violation is linked to a
particular ‘official act,’” the Court said, “it is possible to
eliminate the absurdities through the definition of that term.”
526 U.S. at 408 (emphasis in original).
While it may be absurd to describe receiving a sports team
or visiting a high school as an official act, there is no dispute
that a police investigation can fairly be described in that way.
Because the initiation of such an investigation is a “decision or
action” on a “question [or] matter” that may “be pending, or . .
. by law be brought before” a police detective in his “official
capacity,” the statutory “definition of th[e] term” “official act”
eliminates any argument that Valdes’ conduct falls outside the
scope of section 201(c). Hence, affirming his conviction would
be faithful to both the words and the music of the Sun-Diamond
opinion.
2. The other precedent cited by the court is our own
decision in United States v. Muntain, 610 F.2d 964 (D.C. Cir.
1979). The defendant in that case was a Department of Housing
and Urban Development (HUD) official, who was convicted of
accepting illegal gratuities for assisting his alleged co-
conspirators in marketing private automobile insurance to labor
unions. That assistance involved both Muntain’s personal acts
and his efforts to get his HUD subordinates to help him. As the
court explained in reversing Muntain’s conviction, the problem
with the government’s case was the absence of evidence
suggesting “that automobile insurance as a benefit for labor
unions fell within HUD’s jurisdiction.” Id. at 966. Because
“promot[ing] group automobile insurance” did not “involv[e] a
subject which could be brought before Muntain or, for that
18
matter, anyone else at HUD in an official capacity, [there was]
no apparent danger that the receipt of gratuities . . . in
connection with the group automobile insurance scheme would
induce Muntain to act improperly in deciding a HUD-related
matter.” Id. at 968. The “determinative factor,” we held, was
“whether Muntain’s actions” -- both personally and in directing
his subordinates -- “involved a matter or issue that could
properly, by law, be brought before him as an Assistant to the
Secretary” of HUD. Id. at 969. “Since the promotion of group
automobile insurance was not such a matter,” we concluded
“that no official act occurred and, hence, 18 U.S.C. § 201[(c)]
cannot be invoked.” Id.
Muntain reflects an important statutory limitation on the
scope of the gratuity provision: the action at issue must involve
a question or matter “which may at any time be pending, or
which may by law be brought before” the defendant in his
“official capacity.” 18 U.S.C. § 201(a)(3). That limitation is
satisfied here. Valdes was a police detective, and the kind of
matter involved in this case -- a police investigation --
unquestionably could have been pending or brought before him
in his official capacity. Accordingly, neither Muntain nor any
other case supports the result that the court reaches today.
III
My conclusion that there was sufficient evidence for a
reasonable jury to find that Valdes’ conduct constituted an
investigation, and hence an official act, is sufficient to end my
analysis of this issue. See Jackson v. Virginia, 443 U.S. 307,
319 (1979) (holding that evidence is sufficient to sustain a
verdict if “any rational trier of fact could have found the
19
essential elements of the crime beyond a reasonable doubt”).14
The court, by contrast, must go further. Because it concludes
that Valdes’ conduct did not constitute an investigation, it must
go on to consider whether that conduct -- viewed simply as an
information disclosure -- nonetheless falls within the compass
of “official act.” Although I do not need to decide that question,
I am compelled to address troubling aspects of the court’s
analysis.
A
According to the court, “[e]xcept in limited circumstances”
like those involving formal procedures established by the
Freedom of Information Act (FOIA), “we do not believe that a
release of information can constitute a ‘decision or action on any
question, matter, cause, suit, proceeding, or controversy.’”
Court Op. at 20 (quoting 18 U.S.C. § 201(a)(3)); see id. at 20-
21.15 Hence, under the court’s interpretation, if a drug dealer
were to reward Valdes for providing him with the names, home
addresses, and Social Security numbers of government
witnesses, taking (or giving) the money would not constitute an
unlawful gratuity -- unless the dealer also filed a FOIA request.
The same would be true if an identity thief (or a commercial
enterprise seeking to augment its customer list16) paid Valdes for
14
I address the separate issue of the erroneous jury instruction in
Part IV.
15
See also Court Op. at 15 (“Even if Blake had sought license
plate and warrant information about real people, that fact would not
have transformed his five questions, or Valdes’s answers, or both, into
. . . any . . . kind of ‘matter,’ etc., covered by § 201(a)(3).”)
16
Cf. Parks v. United States, 355 F.2d 167, 169 (5th Cir. 1965)
(affirming bribery conviction for influencing an Air Force sergeant “to
sell the names of the recruits which were in his custody and control”
20
providing such information. The same would be true if Valdes
were paid for running DNA or fingerprint checks. And the
same would be true if a drug company, rather than a drug dealer,
rewarded an FDA scientist for disclosing confidential
information about the agency’s plans for approving the
company’s drugs.
The court consoles us with the possibility that, under such
circumstances, Valdes’ information disclosure might violate one
of an array of specific non-disclosure statutes. (It would not,
however, violate the drug laws if Valdes did not know why the
drug dealer wanted the information.) In fact, it is not at all clear
that any of the criminal statutes cited by the court, see Court Op.
at 11, 21, would apply to Valdes’ situation; and it is extremely
doubtful that any would apply to the private citizen who paid
him the money. But even if a non-disclosure statute did apply,
the court correctly concedes that the possibility that Valdes
violated another statute “implies nothing direct about his
culpability under § 201.” Id. at 11. Congress may well -- and
often does -- proscribe the same conduct in multiple statutes.
See United States v. Williams, 216 F.3d 1099, 1102 (D.C. Cir.
2000) (“It is not uncommon for laws to be cumulative.”). And
it would be neither troubling nor surprising if section 201
punished the disclosure of information for pay more severely
than other laws punished the mere disclosure alone. Disclosing
information for pay adds a level of venality that the legislature
is certainly warranted in punishing with greater severity.
The court also consoles us with the possibility that, if
Valdes took money offered to induce him to provide
confidential information, that “might qualify as [an act] ‘in
violation of the official duty’” of a public official. Court Op. at
21. If it did so qualify, Valdes’ conduct might violate a different
to a life insurance salesman).
21
subsection of the bribery statute, subsection 201(b)(2)(C), which
punishes a public official for corruptly accepting payment in
return for “being induced to do . . . any act in violation of [his]
official duty.” That possibility is not much consolation.
First, this circuit has never had occasion to construe the
meaning of “official duty” under subsection 201(b)(2)(C), let
alone to explain how it differs from the meaning of “official act”
under subsection 201(b)(2)(A).17 Nor are the varying
explanations offered by other circuits particularly helpful.18 The
court thus holds out the possibility of a bribery prosecution
17
In relevant part, subsection 201(b)(2) states that whoever,
being a public official . . . directly or indirectly, corruptly
. . . accepts . . . anything of value . . . in return for: (A)
being influenced in the performance of any official act; .
. . [or] (C) being induced to do or to omit to do any act in
violation of the official duty of such official or person; . .
. shall be fined . . . or imprisoned . . . or both. . . .
18 U.S.C. § 201(b)(2) (emphasis added).
18
Indeed, the principal case cited by the court, Parks v. United
States, 355 F.2d at 168-69, holds that both the “official duty” and the
“official act” provisions cover the case of an Air Force sergeant who
sells the names of new recruits to an insurance salesman -- a view of
the statute that is directly contrary to that taken by the court today.
See also United States v. Parker, 133 F.3d 322, 325-26 (5th Cir. 1998)
(interpreting “[a]cts that violate an official’s duty” as a subset of
“official act[s]”); United States v. Alfisi, 308 F.3d 144, 151 n.3 (2d
Cir. 2002) (“Subsections (A) and (C) undoubtedly overlap in some
considerable measure, although resort to (A) seems most appropriate
in the case of bribes regarding decisions involving the exercise of
judgment or discretion, . . . while use of (C) would be most
appropriate in the case of bribes to induce actions that directly violate
a specific duty.”).
22
under a subsection of uncertain meaning, while eliminating the
possibility of such a prosecution under subsection
201(b)(2)(A).19 The court’s analysis eliminates the latter
possibility because, if it is not a gratuity in violation of
subsection 201(c)(1)(B) for Valdes to accept money from a drug
dealer “for or because” he conducted the WALES searches, it
cannot be bribery in violation of subsection 201(b)(2)(A) even
if that money “influence[s]” him to conduct those searches.
That is so because both subsections 201(c)(1)(B) and (b)(2)(A)
require an “official act,” and because both rely on the same
definition of that term. See 18 U.S.C. § 201(a)(3). Indeed, on
the court’s analysis, it cannot even be bribery under section
201(b)(1)(A) for the drug dealer to pay to influence the
detective to conduct such searches.
Second, the principal problem with the court’s decision is
not that it will permit criminals to bribe our public officials, but
that it will permit them to reward those officials. Even if the
“official duty” subsection of the bribery statute (§ 201(b)(2)(C))
does apply to a payment intended to induce disclosure of
confidential government information, that subsection (unlike §
201(b)(2)(A)) has no parallel in the gratuities subsection (§
201(c)(1)). Hence, if a public official is paid cash as an after-
the-fact “reward” -- not as an “inducement” -- for disclosing
confidential information, the payment is not unlawful under the
court’s analysis. See Sun-Diamond, 526 U.S. at 404-05
19
See, e.g., United States v. Sutton, 801 F.2d 1346 (D.C. Cir.
1986) (conviction under “official act” prong of bribery statute based
in part on payment for disclosure of confidential information
regarding Department of Energy settlement negotiations); Parks, 355
F.2d at 169 (upholding bribery conviction for paying an Air Force
sergeant to sell names of new recruits, because the payment was made
“with intent to influence his . . . action on any . . . matter . . . pending
. . . before him” (omissions in original)).
23
(explaining that “for bribery there must be a quid pro quo,”
while an “illegal gratuity . . . may constitute merely a reward for
some future act . . . or for a past act that [the official] has already
taken”). That is true for all of the “rewards” described above --
ranging from one paid to a detective by an identity thief or drug
dealer, to one paid to an FDA scientist by a drug company.
Although the court is correct in noting that the bribery
provision covers more “predicate acts” than the gratuity
provision, it has no warrant for concluding that applying the
latter to Valdes’ conduct would disturb a “kind of balance”
chosen by Congress. Court Op. at 16; see id. at 16-18. There is
certainly nothing in the legislative history to suggest that
Congress intended the gratuity predicate to be so narrow as to
exclude conduct like that of Valdes, or like that of the identity
thief, drug dealer, or drug company noted above. Although the
court is correct in saying that it “is the corruption of official
decisions through the misuse of influence in governmental
decision-making which the bribery statute makes criminal,” id.
at 10 (quoting Muntain, 610 F.2d at 968 (emphasis added)), the
gratuity provision reaches further to prevent the creeping
corruption that may arise as the result of giving or receiving
rewards for official acts. As the House Report accompanying
the passage of the current statute explained, the “conduct which
is forbidden” by the gratuity provision “has the appearance of
evil and the capacity of serving as a cover for evil.” H.R. Rep.
No. 87-748, at 19 (1961). Defining that provision so narrowly
as to preclude prosecution of information disclosure except in
FOIA cases contravenes congressional intent and eliminates an
important tool routinely used by prosecutors to fight public
corruption.20
20
See, e.g., United States v. Gaines, Nos. 92-5446, 92-5501, 1993
WL 220206 (4th Cir. June 23, 1993) (illegal gratuities conviction, in
which the official acts were the supplying of “confidential, sensitive,
24
Third, the court’s disposition of this question does public
officials no favor. Because the court’s opinion makes it
impossible for a prosecutor to charge, or the jury to settle upon,
a lesser included offense for conduct that most people would
consider criminal, it makes it more likely that those who
undertake such conduct will be charged with and convicted of
the greater offense of bribery.21 Indeed, Valdes -- who the jury
acquitted of the greater offense but convicted of the lesser --
may well have been the beneficiary of such a resolution, the
possibility of which the court now takes off the table.
B
There is nothing in the plain language of subsection
201(a)(3)’s definition of official act that precludes it from
encompassing the disclosure of an agency’s -- or the nation’s --
and classified” Navy information to defense contractors); United
States v. Greenberg, 444 F.2d 369 (2d Cir. 1971) (illegal gratuity
conviction in a sting operation, where the official act was providing
information concerning an IRS investigation); United States v.
Viviano, 437 F.2d 295 (2d Cir. 1971) (conviction in a sting operation
for offering a gratuity for confidential information from IRS files).
21
See Keeble v. United States, 412 U.S. 205, 212-13 (1973) (“[I]t
is no answer to petitioner’s demand for a jury instruction on a lesser
offense to argue that a defendant may be better off without such an
instruction. True, if the prosecution has not established beyond a
reasonable doubt every element of the offense charged, and if no
lesser offense instruction is offered, the jury must, as a theoretical
matter, return a verdict of acquittal. But a defendant is entitled to a
lesser offense instruction . . . precisely because he should not be
exposed to the substantial risk that the jury’s practice will diverge
from theory. Where one of the elements of the offense charged
remains in doubt, but the defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction.”).
25
secrets for pay. Whether to disclose such information can
reasonably be viewed as a “decision or action” on a “question
[or] matter” that “may by law be brought before any public
official, in such official’s official capacity.” The court rightly
warns that “every question-and-answer between an official and
a citizen can[not] be brought within the statute.” Court Op. at
21. I certainly agree that the term “question” does not
encompass any sentence that ends in a question mark. Instead,
as Muntain indicates, the types of “questions” covered by
section 201 are those that may be “pending” or “may by law be
brought before” the defendant public official. See 610 F.2d at
969. But there is no reason why we must conclude that Valdes’
conduct in this case did not constitute an action on just such a
“question.” To find Valdes’ conduct covered by the statute is
not to work a “[j]udicial extension” of the congressional text,
Court Op. at 18; rather, the court’s contrary holding effects a
judicial contraction.
The court reaches this result because, in my view, it
misconstrues the “question” that is actually at issue in Valdes’
case. The “question” is not, as the court suggests in referring to
Blake’s request for the name of the license holder: “What is
your name?” or “Where do you live?” Court Op. at 9, 12.
Rather, the question is: “What do the government’s files show is
the name and address?” That is a question that was “pending”
and “brought before [a] public official,” namely Valdes. And
because access to WALES is restricted to law enforcement
personnel, it is a question that Valdes could answer only in his
“official capacity, or in [his] place of trust or profit.” In the
court’s own formulation, that question -- What do the
government’s files show? -- is a “[q]uestion[] . . . subject to
resolution by the government.” Court Op. at 9. Indeed, just as
“‘Should the police investigate this person?’ . . . is clearly a
question answered by the government,” id. at 13, so too is
26
“Should the police disclose the contents of law enforcement
computer files?”
None of this conflicts with the dictum of Sun-Diamond. As
discussed in Part II.B.1 above, that dictum was aimed, as the
Court itself said, at preventing absurdities from becoming
gratuities -- absurdities like the gift of a jersey for receiving a
sports team at the White House, or the gift of a cap for visiting
a high school. But there is nothing absurd about barring a
government official from taking cash as a reward for disclosing
the contents of restricted files. We should not, and we need not,
foreclose the prosecution of such behavior by the manner in
which we decide this case.
IV
Finally, I agree with my colleagues that the district judge’s
jury instruction on the definition of “official act” was error.
Court Op. at 12-13. The judge refused the defendant’s request
to include the statutory definition set out in subsection 201(a)(3),
and instead instructed the jury that “the term official act means
any decision or action within the scope of the public official’s
authority.” J.A. 721. That refusal conflicts with Sun-Diamond’s
directive to focus on “the definition of [official act],” 526 U.S.
at 408 (emphasis in original), and the court is right in holding
that the government cannot satisfy its burden of showing that the
error was harmless, Court Op. at 13; cf. Sun-Diamond, 526 U.S.
at 412-14 (rejecting a claim that an erroneous jury instruction
concerning the scope of subsection 201(c) was harmless).
But my colleagues’ conclusion that the jury instruction was
error is without consequence to their analysis. Because they
hold that no reasonable jury could have found Valdes’ conduct
to constitute an official act, no jury instruction could have saved
the conviction, and the case against him must be dismissed. For
27
me, by contrast, the error is of consequence. Because it was not
harmless, the judgment must be reversed. But because I regard
the evidence as sufficient for a properly instructed jury to
convict Valdes of accepting an illegal gratuity, I would remand
the case for a new trial.
V
In a well-intentioned effort to avoid reading section 201 so
broadly as to include the absurdities described in the Sun-
Diamond dictum, the court has denied the government an
important weapon in fighting official corruption. It is one thing
to interpret section 201 as a “scalpel” rather than a “meat axe.”
Court Op. at 8 (quoting Sun-Diamond, 526 U.S. at 412). It is
quite another to turn the scalpel on the statute itself. Because
today’s decision has that unintended consequence, I respectfully
dissent.