United States v. Marcus Henderson, 2 F.4th 593

Marcus Henderson, a Lucas County jail guard, accepted $500 and smuggled a cell phone and tobacco into the jail for an inmate as part of an FBI sting.
Jail policy required officers who find contraband to book it into evidence and file a report, which automatically triggers a disciplinary-board hearing that adjudicates guilt and punishment.
Henderson did not file the contraband report; a grand jury indicted him for providing contraband (18 U.S.C. § 1791) and Hobbs Act extortion under color of official right (18 U.S.C. § 1951).
At trial one the jury convicted on the contraband count but hung on the Hobbs Act count; the government retried the Hobbs Act count with a modified jury instruction and obtained a conviction.
On appeal Henderson argued (1) the district court abused its discretion by refusing to include McDonnell v. United States language in the jury instruction defining “official act,” and (2) the evidence was legally insufficient because his conduct did not meet the statutory definition of an “official act.”

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by refusing Henderson's proposed jury instruction repeating McDonnell's "similar in nature" language	The omitted McDonnell language correctly stated the law and its absence materially impaired Henderson's defense	Denial did not substantially impair the defense because the disputed issue was squarely presented, counsel argued it to the jury, and the prosecution identified the relevant "matter" (disciplinary-board punishment)	No abuse of discretion; denial harmless because jury was "well aware" of the defense theory
Whether evidence was sufficient under McDonnell to treat Henderson's conduct as an "official act"	McDonnell's limits mean smuggling and passive nonreporting cannot constitute an official act	Henderson’s acceptance of money included an implicit agreement not to report; his failure to file the mandatory contraband report was a deliberate decision that prevented a disciplinary proceeding—a specific, formal matter—so it qualifies as an official act	Evidence sufficient: decision not to report controlled the formal disciplinary proceeding and fits the statutory definition of an official act (consistent with Birdsall and McDonnell)

McDonnell v. United States, 136 S. Ct. 2355 (2016) (clarifies the statutory "matter" must be a formal exercise of governmental power similar to a court/agency/committee proceeding)
United States v. Birdsall, 233 U.S. 223 (1914) (holding that advising or acting to affect a pending official decision can be an "official act")
United States v. Godofsky, 943 F.3d 1011 (6th Cir. 2019) (standards for reviewing claimed jury-instruction error)
United States v. Alebbini, 979 F.3d 537 (6th Cir. 2020) (standard for sufficiency-of-evidence review)
United States v. Sumlin, 956 F.3d 879 (6th Cir. 2020) (drawing all reasonable inferences in favor of the verdict)
Richardson v. United States, 468 U.S. 317 (1984) (retrial after a hung jury does not violate double jeopardy)
United States v. Van Buren, 940 F.3d 1192 (11th Cir. 2019) (contrasting treatment of the "matter" identification and jury instruction issues)