United States v. Valdes, Nelson

review, petition grant in part we deny part the Board’s cross-applica-

tion for enforcement. We affirm the

Board’s substantive conclusions and en- force the Board’s remedial order insofar as requires Company to cease and de- practices, post notices,

sist all unfair labor and make employment whole and offer Cogburn Hill, Husband, former employees Kirk, Wiggins, Langham, and Collins. Fi- nally, we hold that there simply no basis

in this record for an bargaining affirmative

order or the finding Cogburn Board’s 8(a)(1) bargain §§ failed to in violation of (5). 437 F.3d 1276 America, Appellee UNITED STATES VALDES, Appellant. Nelson Zukerberg argued Paul H. the cause and No. 03-3066. filed appellant. the briefs for Appeals, States Court of Schertler, Lisa H. Assistant Ü.S. Attor- District of Columbia Circuit. ney, argued the appellee. cause for With Argued Nov. her on the brief were Kenneth L. Wain- stein, Attorney, Fisher, U.S. John R. As- Decided Feb.

sistant Attorney U.S. at the time the brief filed, Roy McLeese, and W. III and J. Rowan, Patrick Assistant Attorneys. HENDERSON, Before: Circuit Judge, WILLIAMS, and EDWARDS* and Senior Judges. Circuit Opinion for the Court filed Senior Judge Circuit WILLIAMS.

Dissenting Opinion filed Circuit Judge HENDERSON.

* Judge Senior regular Circuit Edwards was in argument. service at the time of oral ber, “just in case WILLIAMS, saying [Blake] it was Senior F. STEPHEN a favor.” ever needed Judge. Circuit instructed working agent undercover an FBI An FBI informant On March Valdes, him provide to Nelson then a detec- if would gave cash Blake to see Valdes Accordingly, De- information. the Metropolitan the Police police tive D.C. with with (“MPD”), apparently computer as a reward data bas- partment FBI entered into state individuals, searching several data fictitious for Valdes’s the names of five es (Save for supply information. and license bases to fictitious addresses along with 361-A-B, 365-67, of an information about the non-existence J.A. plate numbers. “1223,” the person, evening, again for a fictitious arrest warrant 371-72. That was, him a according to uncontra- if he could do information Blake asked Valdes testimony, plate available. Joint license publicly looking up dicted of “favor” (“J.A.”) 663-64.) 659-61, Valdes that Blake Appendix of some individuals numbers under 18 U.S.C. track money, presumably was convicted him to said owed receipt of three counts of information. Valdes their contact down problem” “for or because of “no illegal gratuities an[ ] indicated that it would be argues phone official act.” that the stat- him cell Valdes told Blake to call on his sweeping govern- leaving, far than the Blake get ute is less the information. On court, successfully bill; testimony ment claimed district no handed a Valdes $50 proper and that under a construction if accompanying conversation describes Valdes, later, evidence was insufficient. called any. days Four Blake claims, in- judge,” He makes a number of other reiter- introducing himself as “the on cluding aspects provided attacks two related request ated his earlier jury argument instruction and an plate the first license number. Valdes with a matter of acquittal entitled to name and ad- then obtained the Valdes grounds entrapment. agree on We a through query holder dress the license that the district court’s inter- Enforcement Washington with Valdes to the Area Law (“WALES”), error and that pretation computer of the statute was a data base System failed show Blake linked to state data bases. When compensa- later, received him provided acts for which Valdes back with called expressing tion official acts within the were the name and address. After information, § therefore reverse the con- We Blake satisfaction with reaching Valdes, you viction Valdes’s other much I owe without “How [do] asked a responded, claims. “Just for this?” and Valdes ^{[*] [*] [*] [*] [*] [*]} thank-you.” later, 17, 2001, March Blake days on evening February Two

On him a Blake, again and asked to run working as an undercover called Valdes William FBI, plate query, which Valdes assign- on second license informant for the went they proposed to do. Blake Washington nightclub agreed called ment (located day person; meet the next “1223” at 1223 Connecticut Ave- NW). meeting by way explanation, nue, At “1223” Blake intro- testified money: offer enable him to judge, and Valdes duced to Valdes as through the push [money] “I couldn’t an MPD detec- turn identified himself as equipped Blake for the The FBI again phone.” met at “1223” a week tive. The two Rolex and Mercedes- later, meeting gold gave Blake with on which occasion Valdes and video re- with audio phone cell num- Benz automobile card with his business corders; performed by unclear the handlers’ or to official ... what such outfitting phony judge impris- shall be fined under this title or purpose was years, a Rolex and Mercedes. Blake and oned for not more than two both. at a local arranged gas meet station, paid Blake Valdes and where $200 added). § (emphasis 18 U.S.C. plate. him to run a third asked license An pur- “official act” is defined for these provided Valdes Blake with the names and poses as plates addresses for the second and third decision or action on evening that phone, again having over the matter, cause, suit, proceeding or con- the obtained information via WALES. troversy, may at any which may by or law be On March Blake asked Valdes to run any public before official .... plate. agreed a fourth license The to two station; day gas meet the next at the same 201(a)(3). § 18 U.S.C. most of Unlike there, paid upon Blake receiv- $100 § anti-bribery provisions, 201’s the anti- address, again the fourth name and gratuity provision requirement has no that obtained via WALES. also asked payment actually the the “influence[ ] Valdes to check a friend of whether performance” of an official act. Compare, warrant,” Blake’s handing “ha[d] 201(b)(2)(A). § e.g., 18 U.S.C. “give you an additional a little $100 argues logging that onto the again more incentive.” Valdes used system public WALES to retrieve informa and night WALES told Blake that tion does not constitute a “decision or ac person. there no warrant out on the tion” and that there “question, was no matter, cause, suit, proceeding or contro Valdes was indicted on three counts of versy” regarding any of the individuals bribery, in violation of 18 U.S.C. 201(b)(2)(A) (C). that was or could be pending before jury A convicted primarily Valdes. He relies on United him of three counts of the lesser-included Muntain, (D.C.Cir. States v. 610 F.2d 964 receipt illegal gratuity, offense of of an 1979), 201(c)(1)(B). where we found that the defendant violation of 18 U.S.C. fer, 183 F.3d reasonable doubt termine whether most favorable to the could dence de We review the ^[*] have found Valdes crime. See United States v. Schaf novo, fk considering sk sufficiency 839-40 all rational trier of fact government, required ^[*] guilty beyond (D.C.Cir.1999). of the evi ^[*] elements to de light ^[*] ties for an official act when he was com unions with whose leaders he government’s argument pensated by private persons for selling private auto insurance official HUD business. We Labor Housing (“HUD”), Muntain, Relations at an Assistant to the had not accepted Urban schemes that official acts Department illegal gratui Secretary Development also rejected dealt on labor anti-gratuity provides statute that: “encompass any range acts within the duties,” ... being public Whoever official ... gov official’s than provided by argued otherwise law for ernment included Muntain’s meet proper discharge duty, ings of official with labor union officials. Id. at 967. demands, seeks, directly indirectly promotion As the of group auto insurance receives, accepts, agrees to receive or was not a matter that “could be brought or, matter, accept anything personally any of value for that Muntain — performed capacity,” because of act one else at HUD—in an official benefits, as Security Income Supplemental gratuities danger no there was Parker, 133 F.3d 322 in United States Muntain “to could have induced received (5th Dissent, Cir.1998); 437 F.3d compare deciding a HUD-related improperly act n.3, gar “ignoring or an official’s at 1285 matter.” Id. at 968. parking violations” bage violations distinguish tries Dis enforcing, compare charged with 'pri- on the basis that it involved Muntain sent, telling It is F.3d at 1287. (it schemes, insurance whereas vate auto brief, in purporting inherently relate argues) queries WALES statute, omits all the actually quote conducting police to the official except “on” objects preposition But the Muntain court investigations. sure). Ap ellipses, to be (using “matter” pres- government’s didn’t share the plainly Br. at 35. pellee’s public/private divide. ent view in States v. Sun-Diamond Yet resources in government used Muntain Growers, 119 S.Ct. 526 U.S. contacting possible labor union insurance (1999), Supreme 143 L.Ed.2d 576 combining trips govern- on purchasers, in rejecting those relied on words promotion. business with insurance ment that an official claim vio- government’s Further, conduct- Id. at 967-68. besides receiving giv- in benefits lated the statute had, Muntain as the meetings, such position. simply because of his official en in ar- government stressed an alternative “ability mere to favor the The official’s authority gument, supervisory wielded his executing in the functions of his donor to assist him to direct HUD subordinates In enough. reaching not Id. its office” was insurance. Id. at 969. Thus promoting in hypo- holding the Court discussed several deployed government resources Muntain it not fall gifts thetical said would (travel workforce), opportunities just 201(c)(1)(A) § “offi- under for want of (the database). did WALES act,” replica sports jersey including cial rejected clearly But in Muntain we during a ceremonial to the President given government idea that such a use of re- visit, cap a school baseball House White in act” sources was itself an “official within during Secretary to the of Education given 201(a)(3). meaning school, complimentary to a and a a visit concept of “official Secretary Agri- provided lunch for the complete in failure to striking act” is its speech in with a culture connection statutory modifying clause address 406-07, at 119 S.Ct. 1402. farmers. Id. action,” namely, any ques- “on “decision or ceremony, visiting a hosting a While suit, tion, matter, cause, proceeding or school, “are as- delivering speech any time controversy, may at be sense,” they suredly ‘official acts’ some may by brought or law be pending, which not acts’ “are ‘official within are any public noted, official.” words statute, which, before as we have they suggest at self-defining, far from but ‘any act’ to mean decision defines ‘official rudimentary degree formality, matter, cause, least a action on or a deci- suit, controversy, may such as be associated with proceeding would or directly adjudi- may by related to an pending, sion or action or which ” (or cation, any public a license issuance withdrawal or official.’ brought be Court, modification), procure- 1402. Thus the investigation, Id. “absurdities,” id. at ment, Easily rejecting the above policy adoption. or a includ- exact course, invoked the ed, be a clerk’s manufac- 119 S.Ct. would here. jettisoned by government approval of words government ture of official queries appear congressman “brought Valdes’s WALES would that a could have range to fit of activities exclud- congressmen. within before” himself and fellow coverage by Here, ed from Sun-Diamond’s ex- Id. by contrast, the infor- (the amples. All the officials’ acts plainly sought change mant no in the sta- visit, ceremony, queries, WALES or beings, tus of the FBI’s five fictional speech) have in common that none is a respect to fictional “ques- whom even a directly “decision or action” that affects tion, matter, cause, proceeding suit or con- government formal decision made troversy” pending. Of course once government’s public respon- fulfillment of person, there is a fictional “mat- fictional government sibilities. Thus distortions might be ginned up. ter” But a matter policy execution of are on (depending one’s likely generated every be can datum classification) scheme of either non-exis- every If, government data base. as the entirely tent or in the realm of casual and contends, government implicitly liability informal use of resources. applies “matter,” when no etc. is either While one or more of Valdes’s disclosures would into exis- unethical, sanctionable, have been (as tence “for or gratuity because” of the independently even criminal Myers), been in can have other- of an outstanding while disclosure arrest any in plausible way brought” wise “be might warrant have an indirect effect on official, before the analysis the execution, its none of these disclosures sweep any in compensation sharing any for constituted “decision or action on such datum. question, matter in [etc.]” the usual sense makes other argu- two Sun-Diamond of those words. mainly in support expansive ments of its reading distinguished a “decision or action on First, of “official argues acts.” it that question from mere office-holding [etc.]” 201(c)(1) valve,” § action; “safety itself contains a potential and its for later yet the (A) suggests language case also as its introducing distinction between a subsections (B) or any question “decision action on the phrase [etc.]” contains “otherwise array and the vast that' behavior Con- than provided by as for proper law the gress could have covered with some alien- discharge of official duty.” See also compassing phrase such as “act or conduct § (containing the quali- same related to the in any way official’swork or clause). fying argument At oral it sug- using government resources.” gested specifically that Sun-Diamond’s hypothetical Secretary of the of Edu- put

We also aside for obvious reasons receipt cation’s visit and of a cap baseball government’s the argument straw man would be “otherwise” authorized under that the mere fact persons were ficti- regulations by issued the Office of Govern- “matters,” tious does not mean that etc. (“OGE”), ment Ethics 5 CFR pending could not be respect with to them. 2635.204(a), § gift as a v. Myers, below United States points It $20 692 (2d 823, thereby excepted § Cir.1982), from 201. See Oral F.2d 849-50 where Arg. Tape at regulations, 21:20. The OGE upheld Second Circuit of a con- conviction government argues, gressman receiving provide bribes to further introduce gift that a in private immigration permitting bills ficti- accordance with the OGE regulations in does not the anti-gratu- tious sheiks to remain violate United 2635.202(b). But, assuming ity § States. 5 correctness statute. CFR But decision, private immigration bills the Sun-Diamond already are has been “matters,” “questions,” and “proceedings” there and done that. As Justice Scalia

429 noted, rejecting theory em- cused on the defendants’ are unaware “We qualify powering pro- appeal to decriminalize acts on for conduct OGE —that “prescribed hibited of the an “official act” it must be one by Title 18 United States 512, 411, statute,” 231, 119 S.Ct. 1402. id. at 34 S.Ct. one Code.” 526 U.S. Indeed, just of the review had held. oppo- the Court indicated decisions under Birdsall, site, F. gifts below 206 namely, that while are See United States v. $20 (D.Iowa 1913); excepted regulations, they also under OGE see United States (D.Iowa Wert, 1912) § are not under id. 411- v. F. excepted Van rejected stringent thus (arguably imposing S.Ct. an even more ... test, that the “safe the act saying claim harbors that “unless are, regulations] general, Congress [from OGE violation some act of incorporated departmental regulation into the enforcement some of sec- rule au tion 201.” of the Reply See Brief thorized ... no crime Congress has Sun-Diamond, committed.”). States authority 1999 WL been far as So held, Interestingly, regulations concerned, the OGE the Court give, take away they purport say- enough that the an Interior what act—there De despite their terms an Affairs employee partment Bureau of Indian rec “[a]ccept gift persons must not for ommendation clemency return being performance charged influenced of an to Indians— selling liquor 2635.202(c)(1). official act.” Ap- usage 5 CFR fulfilled “an which con established plication provision many depart would in stituted the common law cases on the relation (depending engaged between ment and fixed the duties of those regulation’s “influenced” and activities.” 201’s its 233 U.S. at of’) “for because return us to the inter-

pretive started with and issue we thus to find unconvincing government’s We the government’s the sweeping notion of an argument that its Congress endorsed read- “official act.” ing of Birdsall in the 1962 recodification of

More generally, Sun-Diamond on the statute. No. S.Rep. went See 87-2213 anti-corruption (1962), to reason reprinted that mani- 1962 law in U.S.C.C.A.N. targeted fested a precisely prohi- Report merely maze of 3852. The notes in cursory bitions, exceptions from more general and fashion that the “term ‘official act’ is de- in prohibitions, so that “a statute field fined to include or action this decision tak- interpreted that can linguistically capacity be en a in to be official his scalpel such,” either a a meat axe or should rea- id. at and makes no mention sonably the be taken to be latter.” 526 of the words that the Sun-Diamond Court U.S. 119 S.Ct. 1402. and we find crucial—the reference cause, suit, “question, matter, proceeding Finally, argues government the Sun^-Diamond controversy.” and Birdsall, 233 U.S. States 34 Muntain —both after the 1962 re- decided (1914), S.Ct. 58 L.Ed. 930 controls. notion clearly reject the codification— said, “Every There the action that is “every range action within range within the of official comes § duty” 201’s defini- automatically satisfies within of these purview sections.” Id. 1402; tion. See S.Ct. 512. Whatever the lan- 610 F.2d at 967 n.3 mean, guage government’s pro- posed reading certainly broad was Because failed show holding. payments Birdsall’s The Court fo- that the received Valdes were talk, or action on ter engaging “decision small Blake told (Blake) suit, matter, cause, having Valdes difficul- proceeding contro- ty collecting debt. Blake told Valdes may at versy, might that he “need him to do me a favor” may by or which and handed Appendix Valdes Joint official,” $50. any public required by (J.A.) later, days 50. Four Blake called § judgment U.S.C. conviction Valdes and asked regis- Valdes obtain Reversed. (fictitious) tration information for a certain plate license number. agreed. Valdes HENDERSON, KAREN LECRAFT Blake again day called Valdes later that Judge, dissenting. Circuit Valdes, obtain requested information. (lit- Mexico, they In call it “la mordida” it, not having opportunity had an to obtain bite”); erally, Iran, “bakhshish”; “the Blake, asked Blake to call back later. France, “pot-de-vin.” Here in turn, called a third day time that America, and, “payoff’ today, we call it a supplied Valdes him registration with the majority calls it lawful. Valdes, information. Blake asked Appellant appeals Nelson Valdes “Uhhhhh, how much I you owe [sic] conviction on three receiving counts of ille- this?,” and responded, “Just gal gratuities in violation of 18 U.S.C. you.” thank Joint Appendix Exhibits 201(c)(1)(B). majority (J.E.A.) concludes Valdes, “Naw, 111. Blake told that the man, evidence was insuf- you I’ll take care of somehow” and ficient aas matter of law to establish that laughed. J.E.A. 111.

Valdes committed an “official act” within later, days Two Blake called Valdes 201(a)(3). meaning of 18 U.S.C. In again. Blake asked Valdes to obtain the conviction, reversing Valdes’s I believe registration information for another ficti- grossly misconstrues the plate tious license number again act,” term “official on inapposite relies case agreed. suggested also ignores on-point precedent. law and Ac- meeting day. face-to-face on the next cordingly, I must dissent. next day, Blake called arrange Valdes to meeting. The two met 15 minutes

I. gas later at a station. During meeting this $200, Blake handed saying, Valdes “Here February 2001, Valdes, On a Metro man, put your pocket.” this in J.E.A. at (MPD) politan Department officer, Police said, “Oh, 118. you.” Valdes thank J.E.A. Blake, first met William a Federal Bureau at 119. Blake scrap handed Valdes a (FBI) Investigation posing informant paper plate with another license number judge, popular at a nightclub D.C. and on it and asked Valdes to obtain the regis- exchanged pleasantries.1 the two One tration information. later, again week Blake saw Valdes time, nightclub. At that Valdes handed again Blake called Valdes on March Blake a business card 30th, Valdes, and told Blake to telling got “I tag another call him if Blake ever needed a favor. On you for ....” here J.E.A. at 129. Valdes Day, St. Patrick’s Blake returned to told Blake to call back in 20 minutes. nightclub and again once saw Valdes. Af- Blake called gave back and Valdes another relationship 1. The between and Valdes March 2001. during February- lasted a little over six weeks

431 (and an the information number, for asking total plate Valdes $400 fake license unspecified for apparently night, and additional person him in the next $50 to meet favors). evidence, on this problem.”. J.E.A. at Based replied “no future day the next three counts Blake called Valdes Valdes of jury convicted to meet meeting. They agreed up receiving illegal gratuity. set an During meeting, in 15 minutes. paper piece handed Blake a II. information registration requested on it. Blake handed Valdes

written $100 Title 18 of the Section responded, “That’s cool.” and Valdes makes it unlawful States Code United 121. Blake then asked Valdes to J.E.A. official, indirectly, to directly public on a friend of check for arrest warrant ], ], ], or ], accept[ receive[ “demand[ seek[ (also fictitious). Valdes, He told his anything of accept to receive or agree[] look, yeah, give you a little more “Okay, or because of personally for value incentive, handed Valdes an- right?” and performed performed act or to be replied, J.E.A. 122. Valdes other $100. 201(c)(1)(B). by such official.” U.S.C. 122. Blake called “Thanks.” J.E.A. a lesser- Receiving illegal gratuity night. told Blake Valdes later bribery. States included offense back as call back and Blake called Brewster, (D.C.Cir.1974); v. 506 F.2d searching for the arrest Valdes was war- Schaffer, States see also United informed Blake rant information. Valdes (D.C.Cir.1999) (noting differ F.3d outstanding no warrant on that there was bribery illegal gratuity ence between J.E.A. Blake’s friend. offenses). offense, To establish registration in Valdes obtained both prove must that the defendant information formation the warrant (2) (1) accepts, is a official who Washington Area Law Enforce from the (3) receives, for or anything etc. of value (WALES) computer data System ment performed official act because of instance, onto logged In each base. Ahn, States v. performed. See United using from the station WALES (D.C.Cir.2000). “illegal An 231 F.3d number. unique user identification (1) of three forms’: gratuity ‘can take one accessible to Valdes as an WALES was (2) action, an enticement past a reward 407, 418; J.E.A. only. MPD officer J.A. (3) taken, already position to maintain a eight-hour had attended an 91. Valdes from to take or refrain an inducement course, passed an examination and training (quot id. some future official action.” See biennially in order to re-training attended at 841- citing Schaffer, 183 F.3d J.A. 416. maintain his access WALES. 42). strictly of the database limit The use concludes that the district 418; The'majority purposes. J.A. ed to law enforcement the statute and interpreting erred in the data court logged 91. Once he onto J.E.A. “the failed show base, the information accessed compen- received the acts for relayed then which requested.2 Maj. op. at official acts.” from sation were Blake the information he obtained 201(a)(3), an “offi- 18 U.S.C. did not re 1277. Under Although Valdes WALES. cial act” defined as from Blake a payment, accepted he quest through notes, computer accessible databases majority the FBI had earlier state theAs Maj. op. at 1277. WALES. all of the fictitious information into entered any decision or action on clemency recommendations of did not con- matter, cause, suit, proceeding con- stitute official acts under the statute. Birdsall, 227, troversy, may any 34 S.Ct. 512. which time be court agreed, finding district conclu- may by which be gave sive fact that no statute brought official, Interior public befox-e in Department officials the power to make such capacity, official’sofficial or'in such sentencing recommendations. place profit. official’s of trust or Birdsall, 818, States v. 206 F. The definition of “official act” has not (D.C.Iowa 1913). Court, Supreme substantively been altered since it was however, disagreed district 13, first July codified 1866. See Act of court’s conclusion that an act was “official” 1866, 184, 62, ch. In Stat. 168. only if explicitly a statute authorized the Congress consolidated in section 201 of Birdsall, perform official to1 it. 233 U.S. at Title 18 provisions the various in the crimi- 231, 34 S.Ct. 512. The Court declared that nal bribery. code related to The consoli- “[e]very action that is within the range of dation significant effected “no changes of comes purview” within the and, substance” more important, “[did] bribery statute. Id. at 34 S.Ct. restrict scope present broad 512. It did not power matter that the bribery statutes by construed make such recommendations not ex- courts.” 1962 U.S.C.C.A.N. pressly granted statute, by regula- rule or particular relevance, Of the Senate Report 231-32, tion. Id. at 34 S.Ct. 512. The noted that term “[t]he ‘official act’ is de- Court held that an may “official act” fined to include decision or action tak- found in usage,” “established noting that en by public official in capacity instances, “in numerous duties not com- such.” Id. at 3856. pletely defined clearly written rules are states, As the majority maj. op. at 1279- practice, established settled and action 80, the United States Supreme Court first taken in the performance course of their interpreted the “official act” language in regarded must be as within provisions Birdsall, United States 233 U.S. 34 of the above-mentioned against statutes (1914). 58 L.Ed. 930 In bribery.” Id. at 34 S.Ct. 512. case, the Court bribery charges reinstated Our court has also taken a broad view of against Birdsall in money connection with of “official act” as used paid Department Interior officials to bribery statute. In United States v. Mun induce them leniency to recommend tain, (D.C.Cir.1979), 610 F.2d 964 we dis persons certain selling liquor convicted of Birdsall, cussed noting approvingly that to Indians. Id. at 34 S.Ct. 512. The other courts interpreted had “official act” statute at issue Birdsall —close word to include those “actions or in decisions ing to the interpret today one we it volving falling indisputably matters within —made illegal for accept money an official to given the public ambit of the official’s official with the intent to influence “his decision or duties.” Id. at n. 3. On the other action” any question, matter, cause, “on or hand, we concluded that the term “official proceeding act” did not include the use of one’s status pending, or may by law be as a promote official to purely before him in his official capacity.” Crim. private Muntain, venture. Id. at 968. 39, 117, (1909). 1096, (HUD) Code 35 Stat. 1109 Housing and Development Urban argued Birdsall that indictment undersecretary, peddled private group au charged no offense because the officials’ tomobile insurance to labor unions with

433 not, to, silentio, capacity. he dealt in his official Id. not intended sub at 966-67. The use of his official status to vitality proge its lessen the of Birdsall and private further his venture did not run ny.4 if the “official act” But even Court’s afoul of section 201 because “there nowas dictum, not con discussion were Valdes’s meetings evidence that Muntain’s la with receiving illegal gratuities of viction would promote bor to group officials discuss easily the lin nonetheless stand. While subject automobile insurance involved a 201(a)(3) guistics compli of section or, which could be before Muntain cated, receipt that of reason Valdes’s matter, anyone for that else at HUD in an money accessing information falls with noted, capacity.” official Id. at 968. We simple. its definition is however, that the decision would have Sun-Diamond, In chose what been different had the shown meaning” “the more of termed natural responsibilities that “[Muntain’s] is, 201(a)(3), gratuity section that a expanded by prac been ha[d] HUD settled “for act” received or because official tice or meeting otherwise include with particular means “for or because of some labor union concerning group officials au 406, identity.” act of whatever Id. at tomobile insurance.”3 Id. at 968 n. 3. added). (emphasis S.Ct. 1402 It then dis- Supreme Court discussed the mean- “peculiar cussed the results” the alterna- ing of “official act” in United v. States reading produce, criminalizing tive California, Sun-Diamond Growers receipt gifts sports of such token as a 398, 1402, 119 S.Ct. 143 L.Ed.2d 576 jersey, cap a school baseball and a free (1999). however, holding, Its covers dif- public lunch—all official received issue, namely, ferent “whether conviction position “based on his official and not illegal gratuity under the requires statute linked to identifiable act.” Id. Antici- any showing beyond gratui- the fact that a pating response interpreting “offi- ty given recipient’s because require cial act” to 400, an identifiable act position.” official Id. at 119 S.Ct. Consequently, produce “peculiar would also results” in Court’s treat- ment of “official act” is dictum. It sports jersey/school cap/free does baseball Parker, legitimate authority 3.See also United her States 133 F.3d allowed her (5th Cir.1998), denied, cert. 523 U.S. make the entries. Id. at 326. While the majority "easily” 118 S.Ct. L.Ed.2d includes Parker's with- In acts case, act,” maj. op. in its definition of "official charged the defendant was see 201(b)(2)(C), agrees violating I doubt that it with Parker's prohibits section precise holding: "being "We therefore hold that the official from induced to do or encompasses govern- term ‘official act' use omit to do act violation of official [his] Parker, systems computer fraudulently mental duly.” cre- a clerk to an administrative ..., (ALJ) employee's ate even when the documents judge Security in the Social Admin (SSA), scope authority formally encom- does logged istration onto a database and added). pass (emphases the act.” Id. argued made false entries. She that that her conduct did not constitute act violation Muntain, her because she was not au (citing 4.See 610 F.2d at 968 Bird Parker, ); (same); thorized to make the entries. Id. court sall see also 133 F.3d at 326 rejected argument, using her section Biaggi, United States v. 853 F.2d 98-99 Cir.1988), 201(a)(3)'s (2d denied, “official act” definition. It found rt. 489 U.S. ce (1989) (Con that her conduct constituted an "official act” 103 L.Ed.2d 581 appeals in because the which she entered gressman’s letters on office letterhead to New pending "place fraudulent were in her mayor regarding corporation's entries York arrears act,” profit” city citing of trust or and her “abuse SSA constitutes "official Bird ). equipment” coupled facilities and with abuse sall ” i.e., jersey vestigated registration a vehicle and out- sports lunch scenarios — “for ” standing by accessing visit, warrants WALES? cap a House a baseball a White “for ” patrol, probably hourly While on at a to the school and a free lunch visit —while “for requests as for that infor- headquarters, speech dismissed these “ab- —the is, of him. point mation are made The as statutory falling surdities” as outside earlier, I simple. accepted noted Id. at definition of “official act.” money performing as MPD By linking the violation to a officer. And section makes act,” concluded, it “it is particular “official illegal. this conduct possible to eliminate absurdities majority puts eggs all its in the that term.” Id. through the definition of and, in doing, Sun-Diamond basket so (emphasis original). Hosting sports a First, scrambles them. it treats team, visiting public speaking a school and “official act” Court’s discussion as some not, 201(a)(3), are in the words of section Second, than thing more dictum.7 on “decision[s] action[s] equates Valdes’s WALES search with matter, cause, suit, proceeding or contro- White House and school visits and a versy, ... at time ... or ... any pending, speech, concluding that none a constitutes ... President [the “ ‘decision or action’ that directly affects Secretary].” or a Cabinet formal decision made accessing Not so and dis with Valdes’s government’s public fulfillment of respon closing police information.5 Valdes 8 Maj. op. Building sibilities.” at 1280. on question, ... on “act[ed] (which language this is nowhere even hint ... law be Sun-Diamond), ed at in it then makes an [him], brought before official ca [his] 201(c)(1)(B)’s exception from prohi section pacity.” “question[s]” were “who gov bition for “casual and informal use of plate?” and owns this license “is there an ernment resources.” Id. Nonsense! Sun- outstanding charging arrest warrant this minimis, recognizes Diamond no de “casu person?” Valdes’s “action” was to investi al,” type weight “informal” or other gate by accessing WALES.6 And “for” exception ed from coverage. section 201’s action, multiple this which he undertook Instead, the Court uses the definition of times, “accepted] personally value “official opine act” to that certain actions violation 18 U.S.C. [$400]” be “within the 201(c)(1)(B). many Sun-Diamond, times in per How statute.”9 407, 119 his official in- forming duties has Valdes S.Ct. 1402. majority language necessary

5. The also characterizes the informa- is not to the Court's hold- 1281-82, requested “police” ing, maj. op. tion Blake information. as see it considers the Maj. op. at 1277. interpreting Sun-Diamond dictum oracular in "official act.” Alternatively, could be viewed as having on the “matter" of vehicle "act[ed]” equate taking money 8. To officer's registration and arrest warrant information. private investigating/reveal- citizen from continuously “pending” Such information is ing police information with the President's job part of his before Valdes entails access- accepting jersey championship from a Finally, it. the “matter” before Valdes sports honoring team for the team at “place profit” in his of trust or "absurdity.” White House is itself an solely to him because WALES was accessible position. of his official discussion, 9. Before its Sun-Diamond the ma- majority language jority system. The majority obeyed He also Were the correct —that “official only act” includes “formal” duties —then a precinct bookies in his knew would per enforcement officer’s law get pay- make trouble to an extra never failure form his official—but routine —duties for himself, for that he was content with off was, money, today, illegal, bag. of the station house His his share (reasonable Ahn, see, e.g., 231 F.3d at 32 name was on the list with the others and juror police could find officer’s failure to he never tried to make extras. He was act”), report violations of law “official only graft clean cop a fair who took likewise be decriminalized for the police department rise in the his requisite “rudimentary degree of formali if steady spectacular. not ty” lacking. society would be Our knows Puzo, (Signet Mario The Godfather happens police when offi what we allow ed.1978). money doing cer to take for not do —or job. produces Cap It a man like I that the has estab- —his believe MeCluskey: tain accessing lished that in- Valdes’s been a good cop, cop.

He had brave formation constitutes an “official act.” tough young punks terrorizing of the information Notwithstanding some approached street corners fled when he publicly-available, was otherwise WALES finally vanished from his beat alto- only by was available Valdes virtue gether. very tough cop He awas and a Moreover, capacity.” official the ar- “[his] very fair one. He never took his son not, warrant information rest as the to the storekeepers around to collect his concedes, majority publicly available. See money presents ignoring garbage vi- maj. op. at 1278. violations; parking olations and he took Today, majority sets free a en money directly hand, into his own accepted money forcement officer who direct because he felt it .... he earned personally taking action his official always gave He made his rounds. He capacity precisely the conduct protection, his stores lot of a lot of — aimed. It ignores section is fil- service. When winos and drunks (and unchallenged) decades-old case law up Bowery panhandle tered from the replaces a an bright-line rule with beat he got roughly on his rid of them so they amorphous depends test on whether never came back. The trades- the action taken or decision made is “for people precinct appreciated it. they appreciation. maj. And showed their mal.” at 1280-81. Such an op. See "suggest rudimentary degree Maj. op. at least a of for- mean.” It concludes as, mality adjudication, ... such an a license with the statement that "Sun-Diamond and issuance, [orj investigation." Maj. op. .. . clearly reject Muntain ... the notion that added). (emphasis plainly at 1279 IWhile do ‘every range duty' action within the of official agree dichotomy not with the formal/informal automatically satisfies 201’s definition.” fashioned, majority has I note that it at First, Id. at 1280. Suri-Diamond does not recognizes investigation” pre- least that “an — "clearly” reject language. Birdsall's does, here, cisely what and did as an Court does not even mention Birdsall because carry necessary MPD officer —would the definition of "official act” was not weight. Muntain, issue before it. As for this court did reject formulation —it restated Birdsall's majority’s 10. The discussion of Birdsall be- "Every follows: action formulation as gins by minimizing broad defini- Birdsall's range ... in- within the of official (“[ejvery tion of "official act” action that customarily well duties range cludefs] as those asso- duty”) within the prefatory language particular job.” remark "Whatever ciated with a 610 F.2d at workable, reliable

interpretation is neither Accordingly, respectfully nor I justifiable. dissent. accessing

968 n. 3. informa- Valdes's lion fits this formulation as well. 7. While the dismisses notes the words of section because, view, 201(a)(3), self-defining,” as dictum in its while "far from Birdsall

Case Details

Case Name: United States v. Valdes, Nelson

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 24, 2006

Citation: 475 F.3d 1319

Docket Number: 03-3066

Court Abbreviation: D.C. Cir.