United States v. Valdes, Nelson

lаw, not to the interpretation Board’s scope of the term “employer” in the

NLRA. Because Congress delegat- has not questions

ed of federal Indian law to the

Board, and because we agree with the

Board’s ultimate conclusion that federal

Indian poses here, no obstacle we need

not remand the matter.

V petition denied, review is

the cross-application for enforcement

granted.

So ordered. VALDES,

Nelson Appellant

UNITED America, STATES

Appellee.

No. 03-3066.

United States of Appeals,

District of Columbia Circuit.

Argued Sept.

Decided Feb. for the brief was on Hebert

J. Gerald Center Legal Campaign curiae amicus appellee. support GINSBURG, Judge, Chief Before: HENDERSON, SENTELLE, TATEL, ROGERS, RANDOLPH, GRIFFITH, and BROWN, GARLAND, Judges, and KAVANAUGH, Circuit WILLIAMS, Senior and EDWARDS Judges. Circuit by Senior filed the Court for Opinion Judge WILLIAMS. Circuit filed Circuit opinion Concurring KAVANAUGH, whom Senior with Judge joins. Judge WILLIAMS Circuit by Circuit filed opinion Dissenting Circuit HENDERSON, whom with Judge joins. RANDOLPH Judge filed Circuit Dissenting opinion Circuit GARLAND, whom with Judge HENDERSON, SENTELLE, Judges join. RANDOLPH, BROWN and WILLIAMS, Judge. Circuit Senior working undercover informant An FBI Valdes, then a detec- cash Nelson gave Police Metropolitan the D.C. tive ap- (“MPD”). cash was Department searching for Valdes’s a reward parently other- supply police databases several to the information available publicly wise exchanges, on these Based informant. argued the cause Zukerberg H. Paul under convicted was Valdes appellant. the briefs filed receiving 201(c)(1)(B) three counts were Barak Cohen Brown Blair G. an[ ] “for or because illegal the National curiae amicus brief for on the stat- that the argues act.” Lawyers Defense of Criminal Association govern- sweeping than far less ute is appellant. support in district successfully claimed ment construc- that, proper court, under Schertler, Attor- U.S. Assistant H. Lisa insuf- was evidence tion, government’s With appellee. argued cause ney, his database either to show ficient L. Kenneth Wain- brief were on the her in- resulting the release queries the brief the time stein, Attorney at U.S. un- act” an “official constituted McLeese, formation III and J. filed, Roy W. a number He makes Attorneys. statute. der Rowan, U.S. Assistant Patrick claims, including attacks on two re- phone his cell get to' the information. On aspects lated jury instruction. leaving, Blake handed bill; Valdes a $50 testimony describes the accompanying con- panel A of thе court agreed that under a versation, if any. days later, Four Blake analysis correct of the statute the evidence Valdes, called introducing himself as “the insufficient, was accordingly and reversed judge,” reiterated his request, earlier and judgment; panel the the did not reach provided Valdes with the first license plate Valdes’s other claims. United States v. number. Valdes then Valdes, obtained (D.C.Cir.2006). the name 437 F.3d 1276 The and address of the license holder through full court resolved to hear the case en query a to the banc, Washington Area on the En- sufficiency Law issue and on forcement System (‘WALES”), whether a comput- district judge’s charge had er database linked to correctly state defined an databases. “official act.” We When Blake later, called now decide that back government pro- Valdes failed to him vided with the show that name the acts for which address. Valdes re- After expressing ceived satisfaction compensation fell with within the in- scope formation, § 201(c)(1)(B); Blake Valdes, of our asked analysis of the stat- “How much I you [do] ute also owe makes clear that the for this?” charge jury and Valdes responded, error. “Just thank-you.” was We a therefore reverse the con- viction. days later, Two on March Blake ‡ ‡ ‡ ‡ ‡ called again Valdes and asked him to run a second plate

On license evening query, February 17, of Valdes agreed Blake, to do. William Blake proposed as an working they undercover meet FBI, day informant for next in person; went on assign- as Blake ment by way to a testified Washington, of explanation, D.C. nightclub a meeting (located called “1223” would enable him to at 1223 offer Connecticut Valdes money: NW). Avenue, “I push At couldn’t [money] “1223” Blake intro- through was duced Valdes as a judge, phone.” The FBI equipped Valdes Blake for the turn meeting identified himself as an a gold MPD detec- with Rolex and a Mer- tive. The met again two at “1223” a cedes-Benz week automobile with audio and vid- later, on which recorders; occasion gave Valdes eo Blake is unclear what the han- his business card with his cell phone purpose num- dlers’ was in outfitting phony ber, “just in case judge [Blake] ever with a needed these luxury items. Blake and favor.” arranged Valdes to meet at a gas local station, where Blake handed Valdes $200 On March an agent FBI instructed and asked him to run a third plate. license Blake to if see Valdes provide him provided Valdes Blake with names and information. The FBI then addresses for the second and plates third entered the names of five fictitious individ- that evening over the phone, again having uals, along with fictitious addresses and obtained the information via WALES. plate numbers, license into computer state databases. That evening, again “1223,” On March Blake asked to run Valdes Blake asked Valdes if he could do him a fourth plate. The two agreed to “favor” and look up plate some license meet day station; next at the gas same numbers, ostensibly get there, contact infor- Blake paid upon Valdes receiv- $100 mation on individuals who owed him mon- ing the address, fourth name and again ey. Valdes indicated that this would be obtained via WALES. Blake asked also problem” “no and told Blake to call him on Valdes to check whether friend of

more WALES Blake’s there bribery, him three violation offense reasonable termine most dence Schaffer, 183 ments could 1999). 201(b)(2)(A) We The additional ^[*] favorable was have de review incentive.” anti-gratuity “ha[d] whether 18of novo, considering receipt of ^[*] doubt found counts crime. warrant U.S.C. indicted $100 the F.3d violation to the warrаnt,” any rational ^[*] sufficiency (C). night 833, 839-40 statute Valdes § all the See government, out 201(c)(1)(B). “give illegal gratuity, A Hi told Blake United States guilty three handing on the lesser-included jury convicted it in provides that: required again used you trier of the sK counts beyond the (D.C.Cir. person. Valdes of fact to little light ^[*] evi ele de v. performance” id. e.g., 18 U.S.C. additional duty,” 18 powers bribery and cial any ment, counsel strued prohibit “equivalent” scope quirements script of Oral cial ery action official’s duty”), not bribery provisions Supreme duty action which 201(b)(2)(C) of the broadly, to aof “any comes “predicate “act to a statute public Court’s decision Argument § official’s argued covered within 18 is within the 201(b)(2)(A). an official act. argues, in violation implicates (“in U.S.C. official. 201(b)(1)(C); encompass statute statement acts,” most violation that the or action reach in the authority.” maintains that is consistent at 35. purview § the duties should be At oral range 201(a)(3) are gratuity a number Conversely, specific essentially within This Compare, see ... offi- notably of offi simply lawful Tran argu “[e]v these view, ban. con also the re ... Birdsall, official being ... 233 v. Whoever States sections.” United for by law provided as 512, than 58 L.Ed. 223, 230, otherwise 34 S.Ct. U.S. duty, of official discharge statutory proper (1914). the extent To seeks, demands, indirectly action,” directly or or “decision modifying clause or to agrees cause, receive receives, accepts, matter, any question, namely, “on for personally of value anything consti accept controversy,” suit, proceeding performed act any (a official gov point the or because limiting language tutes ... by such performed concede), the govern be not does ernment impris- title or fined under this here: be not relevant shall alleges it ment years, or .two than not more consti for disclosures оned searches Valdes’s “questions,” both. on clear “actions” plain tute plate this owns namely, act” ‘Who 201(c)(1)(B). An “official U.S.C. this and “Does live?” he or she does where purposes these is defined ^[1] question, any matter, decision cause, or action suit, ^[2] proceeding on any Appellee’s man have an Br. 29. outstanding arrest warrant?” controversy, ^[3] may at government’s position, however, may or which pending, be Supreme time misinterprets the both official, any public brought [4] the statute. text of plain ignores .... capacity official’s official in Birdsall in such language the broad Whatever Court’s certainly mean, not 201(a)(3). most Unlike Birdsall, fo- the Court was In holding. anti- anti-bribery provisions, the § 201’s theory defendants’ rejecting cused on requirement has provision qualify conduct appeal ... “influence[ actually ] payment —that an “official act” it must be one “prescribed cally be interpreted to be either a by statute,” 231, 233 U.S. 512, at meat axe or a scalpel should reason- as one of the decisions under review had ably be taken to be the latter. held, see Birdsall, United v. States 206 F. Id. at 412, 119 S.Ct. 1402. In Sun-Dia (D.Iowa 818, 1913); see also United mond, adjuration this led the Court Wert, States Van 974, 195 F. reject the government’s theory that 18 (D.Iowa 1912) (arguably imposing an even 201(a)(3) covers action taken stringent test, more saying that “unless in an official capacity. While numerous the act ... ais violation of some act of hosting a ceremony, visiting a activities — Congress ... or of some departmental school, or delivering speech, for exam rule or regulation authorized by Congress ple assuredly ‘official acts’ some —“are no crime committed.”). has been Re- sense,” id. S.Ct. it would jecting very definition, narrow ],” said, “absurd[ the Court Court held consider simply that “[i]n numerous in- them within scope §of id. stances, duties completely defined 119 S.Ct. 1402. Sum-Diamond’s interpre written rules clеarly established gloss, tive like the rule practice, settled of lenity, and action thus taken in the works protect to a citizen course of from performance their punishment must be re- under a garded statute gives as that at provisions within the best of dubious notice that it has above-mentioned criminalized against statutes his bribery.” conduct. Birdsall, 231, U.S. at 34 S.Ct. 512. Importantly for our purposes, the Sum- Birdsall did not, however, stand for the Diamond reached its conclusion proposition that every action within the “through the definition of term [the] [‘offi- range of official duties automatically satis- act’],” cial id. (emphasis altered), and, in § fies definition; 201’s it merely made particular, through a clause gov- that the clear the coverage of performed activities ernment seems quick ignore to here, as a matter of custom. namely “on any question, matter, cause, More useful to this case is the Supreme suit, proceeding or controversy.” At a Court’s observation in United States v. minimum the government’s interpretation Growers, Sun-Diamond 398, 526 U.S. 119 of this six-term series overly is expansive, 1402, S.Ct. (1999), L.Ed.2d 576 that extending the statute to action that in 201(c) § was “merely one strand of an effect any question. answers More broad- intricate regulations, web of both adminis- ly, government’s theory reads the ser- criminal, trative governing the accep- ies of out the statute entirely. Neither gifts of tance and other self-enriching ac- position squares with Sum-Diamond’s di- by tions public officials.” Id. at 409, 119 rection gives effect to all of the statuto- S.Ct. 1402. The Court went on say to ry language. 201(c)’s context specific warranted a in- terpretive approach: contrast, In relying on the canon of nos- citur sociis, a

[T]he numerous we regulations believe that the words “question” statutes littering this and “matter” field[ ] are demon- known strate thаt this is company an area pre- they See, where keep. e.g., Cal. cisely targeted prohibitions Indep. Sys. Operator Carp. FERC, v. com- monplace, and where general (D.C.Cir.2004) more F.3d (describ- 399-401 prohibitions have qualified been ing canon); nu- see also United States v. merous exceptions. Given Menasche, that reality, 528, 538, 348 U.S. statute this field that linguisti- can (1955) (“The 99 L.Ed. 615 princi- cardinal pri- compensation he received and when save is to construction statutory pie auto insur- selling private persons vate (internal omit- quotation destroy.”) not whose unions with labor Inc., Co., schemes 513 ance Alloyd ted); Gustafson busi- HUD official also he dealt 131 leaders 573-75, 115 S.Ct. U.S. characterized we doing so In ness. (1995) Menasche’s (applying L.Ed.2d to “con- the court asking as government six-term light, the Seen principle). version [prior 201(g) questions strue class refers series statutory prohibition 201(c)(1)(B) is as] disposition answer whose matters office That the misuse against government. determined pro- that office through gained “Should contacts questions such includes class 967; plainly we ends,” at regu- id. legislation private new mote ‍‌‌​‌‌‌‌​‌‌​​‌​‌‌‌‌​‌​​​​​​‌‌​‌​​‌​‌‌‌​​‌​​‌​​​‌​‍enact Congress we were Nor directors?,” construction. rejected “Should corporate lating barring Mun- firm and “What the statute to read ready prosecuted?,” person be into his Navy?” corralling his subordinates submarines tain’s supply should given like enterprise, questions promotion include not it would insurance But the statu- name?,” meeting an issue your behavior absence “What normally Id. resolve. act.” of “official tory does definition the cor- “[i]t said that Affirmatively, we is buttressed the statute reading of Our through decisions ruption preceding immediately elements by the deci- in governmental influence misuse It series. the six-term following bribery statute sion-making which minimum, odd, at a linguistically Under- Id. 968.1 criminal.” makes aas question answer to to treat discussion brief standably, the dissenters’ unless question a on” or action “decision explain fails decision the of Muntain government the one that were the answer (the use case Muntain’s distinguishes what holds The same authority decide. had own and his sub- property government of that such requiring the clause of true to union deals private to offer ordinates of a class or matters questions deal job to his officials, whom with or which pending, time be any at “may (use matters) of from Valdes’s on official any public brought by law be Blake’s to answer resources government subject to resolu- Questions not official.” questions). ordinarily not government by the tion lan- would describe the people Thus, precedent the kind our both “by § law being of clear capable make “pending” the statute of guage official, especially public or their moonlighting, brought” before about officials’ not resources, mandate imposes the law if government of misuse official) (or to answer. any perhaps apart official Even two combination. (which be- discuss we anti-bribery statute squares the statute of interpretation Our dissenters), numer- addressing the low in United decision earlier court’s prohibit statutes regulations other (D.C.Cir. ous Muntain, F.2d States § 641 See, e.g., 18 U.S.C. activities. these defendant, 1979), found that we where government of the conversion (prohibiting Secretary for Labor to the Assistant (restricting § property); Housing Department at the Relations gifts); acceptance of employees’ (“HUD”), federal not had Development Urban (limiting disclosure—not § 2721 act official for an gratuities illegal accepted case provisions, as bribery not its we Dissent Judge Garland's Pace 1. bribery. no claim involved the statute's speaking plainly were by employees statе by but other “au- like do you ‘Where live?” and “What kind reeipient[s]” thorized personal infor- of car do you —of drive?” 201(a)(3) Section mation such as a driver’s address con- clearly encompasses former, but not tained in state motor records); vehicle cf. the latter. D.C.Code 22-704 (prohibiting gratuities Our understanding of the term “official which cause an “official to any execute act” is thus in stark contrast to the defini- powers in such official vested ... oth- tion given in the post-trial jury instruc- law”). erwise than required by And tions: though the likelihood that Valdes violated The term “official act” means these deci- other implies statutes nothing direct sion or action within the scope about his culpability under then- public official’s authority. existence underscores an term observation in “official act” includes Sun-Diamond: “Absent a text decisions or that clearly actions requires it, generally expected we ought expand this one piece such as regulatory puzzle officer. so dramati- These cally as to decisions or make many actions do pieces not need to mis- fits .... [N]ot only specifically does law, the text by rule, described here not require job that result; description its more to be natural read- considered an offi- ing forbids it.” 526 U.S. cial act. Similarly, the term official duty is not limited to duty imposed statute, but includes duty

Having defined the statute’s domain lawfully imposed in any manner set- negatively, we emphasize nonetheless practice tled within today’s decision is in no way at odds with agency. numerous other cases finding liability un- der By focusing on ques- those Over the explicit objection- of the defen-

tions, matters, causes, suits, proceedings, dant, the court refused to' include either and controversies that are decided the statutory language on which we have gоvernment, our interpretation of the stat- focused—the definition of “official act”—or ute easily covers: a clerk’s manufacture of anything comparable. In light of our in- government approval of a Supple- terpretation of statute, this was er- mental Security benefit, Income as in by ror —and no means harmless error. Cf. United v. States Parker; (5th 133 F.3d 322 United Mine Workers v. Pennington, Cir.1998); a congressman’s use of his of- 657, 670, U.S. S.Ct. 14 L.Ed.2d fice to Navy secure contracts for a ship (1965) (“Such conduct is illegal not repair firm, as in United States v. Biaggi, .... jury The should have been so in- (2d 853 F.2d 89 Cir.1988); and a Veterans’ structed and we cannot hold lapse this Bureau official’s activity securing a favor- to be mere error.”). harmless able outcome on a disability claim, as in í]* íji H4 Beach v. States, United (8th 19 F.2d 739 Cir.1927) (based on a predecessor .statute). Our dissenting colleagues sug All of those cases clearly are gest covered that by queries Valdes’s violate the statute they § 201(c)(1)(B) because concern inappro- they because constitute a priate influence on decisions that gov- police investigation. We share an impor ernment actually Questions makes. premise tant like argument, this namely the “Should person receive a contract proposition or police that a investigation inis disability benefit, and for how much?” are same class of processes “question, as a simply a different class from questions matter, cause, suit, proceeding or contro- theo- of their bounds the outer define not investigate this police

versy.” “Should at id. 1328. ry. See clearly question example, person?,” Providing government. by the answered that least, believe very we At the of deci- because for or receiving gifts or to of answers ascertainment police officer’s retard, accelerate, con- initiate, sions a “decision amount to cannot questions investigation is an clude, such or skew as unless the investigation an on action” prohibited conduct unquestionably activity in itself, or other certainment § 201. prospect world, have some could real investigations matter, stating police that Simply (or, that about bringing bribery gratuity by the covered are some sort redirecting) squelching case, how- Certainly little resolve does statute investigation. government to be appear there does ever. While that cry ais far behavior Valdes’s point, on Carson, precedent direct States illegal United found in- that to assert implausible seems in (2d Cir.1972), where 464 F.2d using an officer done action terrogative underway, already at issue vestigation ac- constitutes resources Ahn, States v. inor United id. at see the kind “investigation” on tion (D.C.Cir.2000), po where the 231 F.3d 201(c). be covered which oper illegally visited defendant lice officer contrary reach the able to are dissenters and, report in lieu of massage parlors ated readiness of their only because conclusion duty required, secured as violations ing the the activities disaggregate both see operators, parlors’ from the payments “investi- part of an as undertaken bemay belonged to queries Valdes’s at id. Of generalize them. gation,” investiga incipient such active investigations “many police course tion. at Dissent Judge Garland’s quite brief.” mistakenly assert The dissenters (of people, asking questions And two will have our decision imply least evidence) certainly databases, real first, it will consequences: adverse 1323-24. Id. at investigating. part oper- “sting” range of available narrow ex- an enormous constitute it would But officials, see corrupt against ations to de- provision gratuities pansion 1337-38, and Dissent Judge Garland’s encompass- a “matter” “action” fine bribery many “successful second, answered, or question asked ing every 201(b)(2)(A) ]— [§ under prosecutions paral- somehow every question even definition the same depend upon part ask might an official lels those - prosecutions— act’ as ‘official might and answer duty whose his official decision, after our possible” not be would It resources. government a use of entail ill- quite concerns at 1324. Both id. a broad the clause under bring would founded. activities moonlighting range of en- on law no effect has decision Our regular official’s way paralleled an “sting” oper- ability to conduct forcement’s spec- (and a that of broad perhaps work not is problem government’s The ations. well). Thus, workers, a trum fellow fic- purely involved queries that Valdes’s used a lawyer who of Justice Department sought had if Blake Even people. tional up a to look account government Westlaw information warrant and plate be, in the friend legal question have not that fact would people, real about “question” view, “deciding]” a dissenters’ Valdes’s or questions, five his transformed brought [him].” might “be inves- both, answers, into or do far—and dissenters too goes This tigation, “matter,” other kind of target with “information relating to the etc., 201(a)(3); by § covered those actions IRS and investigations FBI’s in exchange no relationship had whatsoever even to a for money”); Lanci, United States v. fictional government investigation. (6th Con- Cir.1982) (defendant F.2d 391 convict versely, inveigling suspect a “sting” into bribery ed of and conspiracy for his role in investigation can generate criminal behav- arranging to bribe an FBI employee to ior reading under our of the statute. Had divulge information, confidentiаl such as government agents created apparent informants). the names of FBI Cf. United drug scenario, investigation had Blake Gjieli, (6th States v. 717 F.2d asked add or specific subtract Cir.1983) (in (holding context) bribery questioned, individuals to be paid him that the duty” “official provision is broader “for because of’ Valdes’s compliance, than the “official act” provision in that “sting” character the events would requires the latter that “the act induced not absolve Valdes. fall within the federal employee’s official

It equally function”). alarmist to suggest that our Our decision plainly therefore decision will bribery somehow render pros- continues to allow bribery prosecutions ecutions difficult to pursue. It is true that when, for example, someone offers some the bribery and gratuity provisions overlap thing of value to induce an official to pro in the sense that type one of predicate act vide information in violation of official covered provisions both is an “official duty. 201(a)(3). act” defined See We believe that 201 thus reflects 201(b)(1)(A) 201(b)(2)(A) §§ & (stating “of- kind of balance between bribery ficial act” predicate for bribery, for offeror former, violations. For the it de- recipient bribe, respectively). But predicate fines the broadly, acts but the bribery provisions cover two addition- required compensatory link narrowly; cul- classes, al predicate one of which consists pability “any act,” attaches official “any of acts “in violation of the duty lawful fraud,” or act in “any violation of [a] lawful such person.” See duty,” but the payment at issue must actu- § 201(b)(1)(C); 201(b)(2)(C) (“in also see ally influence the act or omission. See violation of duty the official of such official (b)(l)-(2). §§ 201 gratuities, For the re- person”). Though the at- dissenters true; predicate verse acts are de- tempt to cast doubt this variation of the fined instance, narrowly (excluding, for bribery prohibition noting our mere violation of an official duty), and the yet court has had occasion to construe required compensatory link is defined duty,” “official many prose- successful (“for broadly more of,” or because even cutions under that term make reasonably the compensation where has had no influ- clear that it embraces the dissenters’ nu- ence). 201(c)(1). §See hypotheticals. See,

merous e.g., Parks v. States, (5th Cir.1965) United suggest 355 F.2d 167 dissenters legisla- that the (explicitly history finding that tive analysis defendant’s ar- undermines this be- rangement pay to an Air sergeant Force cause of a Report, to House H.R.Rep. No. 87-748, sell names of (1961), recruits at new in- observing constituted that the ducement to do an act in gratuity provision of violation the strikes at conduct -with sergeant’s lawful duty); see “the appearance also United of Judge evil.” Garland’s Cruz, (11th v. States 946 F.2d Dissent at But a generality of this Cir.1991) (defendant convicted under brib- sort seems a weak basis for disregarding ery statute for providing an investigative the in statutory differences language. (internal omitted) quota- citations ternal reorganized in 1962 Congress

When omitted). tion gratui- illegal an and added bribery statute ‡ that :¡í made easily have % :j: offense, it could # # ty predi- of all mirror raised, of perfectly a set provision squarely not Though bribery provi- older in the that made acts listed to closely cate related arguments however, to include it chose instead, That sion; examination: requires dissenters of predicate act” themselves “official not only the do actions if Valdes’s even (1964), 201(c)(1) 201(b)(1) §& his queries § “investigation,” an U.S.C. constitute duty” pred- “official of— “fraud” or elements not constitute disclosures 201(b)(2)-(3) & on”—some of action[s] i.е., “decision[s] icates fu- (1964). See 201(c)(2)-(3) day “be might one investigation that ture (1964). The textual 201(f) 201(g) public §& or another brought” before clearer. not be could distinction official. discus previous our In line with reason go then dissenters The activity cannot interrogative sion, simple effec favor” officials “public

we do any action on a “decision as qualify as a gratuity” “illegal eliminating tively suit, cause, matter, proceeding it bribery, question, of offense included lesser can one because merely controversy” give defen chance juries of the deprives qualify activity would imagine Dissent Garland’s Judge a break. dants investigation imagined in some such all disregards course of This brought” before conceivably “be might predi meets the behavior where cases ap notion Any such official. some statutes. of both requirements act cate in our limiting principle; to lack pears provide job is not our importantly, More encompass it context, would example, opportunities menu a broad juries with officer search, if the even any WALES to inter areWe “evil act.” punish an one, because to no the results revealed as written the statute pret the text to a relevant day might one be that search Here, bribery provision Congress. more natural The investigation. future acts than predicate larger set covers brought” “may by law reading of ex Judicial provision. gratuity does however, that recognize, language would provision gratuity for the of those tension typi the like matter[s]” ‍‌‌​‌‌‌‌​‌‌​​‌​‌‌‌‌​‌​​​​​​‌‌​‌​​‌​‌‌‌​​‌​​‌​​​‌​‍“question[s], Congress balance disturb the brought” law be “by cally can course, to modi it is free which, of chose— has underlying issue until the official Ley States any Cf. United fy at time. case obvious An degree. Cir.2002) some (9th surfaced to (noting va, 282 F.3d member for an NLRB abe 201(b)(2)(B), pro would §to regаrd his hoped-for of’ States, “for or because offered on the of fraud United acts hibits (1) pending before matter then on a ruling act re absence “[t]he of a (2) the form extant ALJ or light pointed particularly is quirement Per charge. initial or union’s company’s duty’ or ‘official act’ ‘official explicit poten real dispute with labor 201,” haps a live §of subsections language might intervention for Board tial par includes Congress that “[w]here In (we point). not decide enough need a statute in one section language ticular “may by “matter” cases the these the same all in another section omits but Board before the brought” law be that Con presumed Act, generally it is nascent; pure fiction. it is not in least purposely intentionally and acts gress “may at the clause exclusion.”) (in- true for same inclusion disparate time be an issue pending”; that is linked directly rejects the notion that sharing only by pure supposition to imaginary an information about likely including them — future matter (including an investigation) at least a into glimpse some hitherto non- qualify cannot may, one that in any public features of the agency’s decision- sense, meaningful be “pending” before making violate the statute. —would official, or “any now at time” in the future. are, There course, of procedures, of Exactly how developed an issue must be which the most prominent are those estab- it qualifies as possibly pending or lished by the Freedom of Act, Information to be able brought law is something we under which process officials requests for need not decide. As discussed, already the release of documents or non-document presented the scenario gave nei- information, and in doing so take a “deci- him, ther any nor police officer, sion or action on question, mаtter, [a] reason for official investigation of the indi- cause, suit, proceeding or controversy.” viduals for whom sought Blake Thus, for a example, gratuity given for or number or warrant say To information. of because the disposition of a FOIA re- that in this context there was a “matter” (its quest grant denial, or or the accelera- might “by be brought” before tion retardation of its grant denial, some official is to render the statute an any skewing of the terms of grant its archetypical “meat axe.” denial) must run afoul of the statute. But A objection related is that the answers it cannot that every follow question-and- gave that Valdes to Blake—in more gen- a answer between an official and a citizen sense, eral the release of information— brought can be within the statute sim- requisite constitute the or ac- “decision[s] ply characterizing it as an on” “action on” stage tion[s] some hypothetical matter that “may by law be brought” be- future investigation. This too has an over- fore a hypothetical FOIA (Many official. problem breadth question, —what Q-and-As, such including perhaps those of topic, can say we with confidence could Valdes, Blake however, might qualify never any hypothetical part investi- as acts “in violation duty” gation? official, purposes bribery Except (of limited circumstances provision.) Again, any construction em- which those discussed below are a clear bracing queries such would smack of the example), we do believe Further, release meat axe. in such a reading the of information can constitute a “decision or punish statute would pub- disclosure of any question, matter, action on cause, suit, lic other, information more severely than proceeding or controversy.” Sun-Dia- targeted more punish stаtutes the disclo- mond itself addressed question sure of confidential information. Compare “a group whether of farmers here, would violate 201(c)(1)(B) statute 201(c)(1)(A) by providing complimenta- (permitting imprisonment of more than ry lunch for Secretary Agriculture years), two with 18 (permit- conjunction speech with his the farm- ting imprisonment of no more than one ers concerning various matters USDA year for disclosing certain of confi- types policy.” 526 U.S. at 119 S.Ct. 1402. acquired dential information officer policy Those matters were undoubtedly in the employment). Thus, course of un- “question[s][or] matter[s]” were less there something more than the “pending, or which may by law be ubiquitous possibility abstract that events brought.” Yet Sim-Diamond in- might least trigger a statutorily prescribed dis- location question, controversy” that closure far short colloquies versy, which that the matter, any public or which Because not in process any “decision ^[*] process, of cause, payments itself matter, public exemplified between this line the ^[*] being official,” may the suit, lawby official. “decision or cause, suit, “may judgment received :.k even may prove Valdes action information proceeding by FOIA. as a start í¡: time While required on brought before by Valdes of conviction failed to proceeding any question, action on be difficult, the of the :\i Blake disclosure the exact brought” pending, contro- by 18 show were sort ^[*] fall [a] police officer hundred guilty hundred dollars argument, ficed bribery erly found instructed close the ities official ties ties change has the on bribery and jury split plain (illegal created a than statutes. for the of of —that duty disclosed evidence, dollars, text bribery, bribery). That on the for money. But then gratuities jury was of the the difference Valdes problem Instructed example, convicting on ladies the evidence bribery were the bought, and stating in his bribery statute find carries district in violation information on bribes.” that “For on both Valdes gentlemen, appeal divided illegal gratui- lighter by acquitting illegal gratu- the judge legally those few jury guilty statutes, because At closing verdict actual- of his in ex- a few penal- prop- this suf- the of

Reversed. activities— range of a broader ly applies does disclosing information —than such KAVANAUGH, Judge, with Circuit words, In other gratuities statute. the Judge WILLIAMS Circuit whom Senior lawfully have jury could though a even concurring. joins, (as the dis- bribery guilty of found Valdes concluded), obviously cannot we judge two trict and add majority opinion join the I charge. on acquittal jury’s the review points. brief Valdes jury the convicted though And even this First, circumstances facts and opinion majority illegal gratuities, majority opin- unusual, and as case are cannot conviction correctly concludes on indicates, ruling Court’s ion actions were Valdes’s because stand future prose- not thwart will case Valdes’s stat- gratuities text of the by the covered money-for-information-disclo- cutions of the Su- (a supported conclusion ute decision, just as before today’s After sure. unanimous strong and Court’s preme decision, a covered today’s regarding in Sun-Diamond statements duty corruptly of official in violation who statute). gratuities for some- in return information provides case underscores of this background The crime: a federal commits thing value today’s de- practical consequence key bribery. prosecution future typical In the cision: case is on this spilled ink amount of jury money-for-information-disclosure, ver- jury’s divided a result largely bribery only on be instructed will —and key differences dict, but as well small case defendant’s scenario illegal bribery and scope of textual split- of а the cracks because through slips was indicted gratuities statutes. not recur. will jury verdict the-difference disclosing cer- bribery namely, solely for — like Second, in cases opinions given few exchange for a tain information hun- relied one often trial, prosecutor At dollars. hundred offi- federal of covered of thousands dreds defendant was forcefully argued 1331 cials and those who advise them on ously ethics expressed my profound disagree- issues, point another warrants mention. ment majority’s with the interpretation of bribery Both the gratuities meaning statutes of “official act” defined in 201(a)(3). require prosecution to show some nex- While I fully join us a gift Judge between and a dissent, covered official Garland’s excellent I write action. But public separately officials to would be fool- elaborate two points on I made ish to assume the earlier. really statutes allow them that much room to accept gifts. First, and most important, stare decisis they questionable When become aware of requires comply us to with the United gifts official, to a public investigators tend Supreme States Court’s broad interpreta to turn many over trying stones to deter- tion of the term “official act” as set forth gifts mine whether the were linked to the Birdsall, United States v. 223, 233 U.S. public official’s actions. And even without 512, (1914). S.Ct. 58 L.Ed. 930 In evidence, direct smoking-gun prosecutors Birdsall, precursor statute to section prove can such links circumstan- 201(a)(3) made it illegal for an official to tial evidence. Covered officials who accept money given with the intent in stay clearly want the safe side of the fluence “his decision or action” “on (not line criminal-law to mention comply question, matter, cause, or proceeding phalanx with the of non-criminal regulato- which may at any time be pending, or area) ry provisions in this therefore would may by law brought before him be well-advised not to accept gifts certain in his capacity.” 39, §§ Crim.Code in the place, first than rather their pinning 117, 1096, (1909). 35 Stat. 1109-10 The hopes on arguments after-the-fact prem- Supreme Court held that an “official ac on statutory ised terms such as “in return tion” “prescribed need by statute” or for” “official act” “official In duty.” “clearly includes action established words, absent an authorization practice,” Birdsall, settled U.S. exception, public might officials decline 231, 512, declaring S.Ct. that “[e]very monetary gifts trips, and ensure that tick- action that is within the range of official ets, and the like paid the offi- duty comes within the of’ purview themselves, cials id, when statute, 34 S.Ct. 512. It (in allowed, or so the case of elected offi- hard imagine a broader statutory reach cials) by a political campaign committee than language precursor statu so when allowed. certainly That’s simpler, te.1 And we are likewise bound give cleaner, and than cheaper attempting to the successor statute-containing almost argue particular afterwards that a gift was verbatim the language-the all-inclusive not linked to an official action. same until reach and unless directed to do See otherwise. Welch v. Tex. Dep’t of HENDERSON, KAREN LECRAFT Highways & Pub. Transp., U.S. Judge, RANDOLPH, Circuit with whom 478-79, 97 L.Ed.2d 389 Judge, joins, Circuit dissenting. (1987) (“The rule of depends in large my In dissent from the panel vacated part on adherence to the doctrine of stare decision, Valdes, see United States v. 437 decisis.... It any departure follows that F.3d (D.C.Cir.2006), 1282-88 I previ- the doctrine of stare decisis demands Nevertheless, the current takings. 201(a)(3). adds version See 18 U.S.C. "controversy” "suit” and to the list of under- criminalizing the results,” such (internal liar quotation justification.” special for a jersey sports receipt of a has never President’s omitted)). Supreme Court visit, Edu House oth- White overruled, down ceremonial watered expressly a school base receipt I Secretary’s Nor do Birdsall.2 cation retreated erwise Agricul or the silentio visit so sub a school cap has done for the Court ball believe Grow- lunch complimentary Secretary’s v. Sun-Diamond States in United ture 1402, 407, 398, 119 Cal., 119 S.Ct. at Id. 526 U.S. to farmers. ers speech his (1999). “[Tjhose 576 explained, 143 L.Ed.2d Court 1402. The S.Ct. assuredly ‘official they are actions—while red-her spectacular is a Sun-Diamond acts’ not ‘official in some sense—are acts’ ad Sun-Diamond in this case. ring id., statute,” and meaning of the within ille under the conviction “whether dressed linked concluded, the violation “[W]hen showing requires statute gratuity gal act,’ possible it is ‘official particular to a was given fact that beyond through the the absurdities eliminate defi position.” official recipient’s because 408, term,” 119 S.Ct. at id. nition of The Court 400, 119 S.Ct. Id. at than Other original). in (emphasis 1402 201(c)(1)(A) that section the idea rejected statutory defini term’s full iterating the gift showing that only a “requires to the nothing tion, added the Court “defi recipi by the motivated, part, at least in 407-08, 119 at term.”3 Id. nition of governmental to exercise capacity ent’s certainly did it most 1402. And S.Ct. favor in the donor’s power influence ninety years that is over jettison precedent it was showing necessarily without summary majority’s intact. The and old act,” at id. official particular to a connected 1322-23, Birdsall, Maj. Op. at dismissal origi (emphasis 405-06, 1402 application insupportable of an favor omitted), holding (internal nal) quotation faith duty to violates our Sun-Diamond an ‘offi upon insistence that “[t]he instead Fel v. Agostini See precedent. fully apply defined, act,’ pregnant seems carefully cial 1997, 237, 138 203, 117 ton, S.Ct. U.S. 521 particular that some requirement (“[I]f (1997) precedent 391 L.Ed.2d proved,” id. act be identified application direct has Court] Supreme [the added). The (emphasis 406, 119 S.Ct. 1402 case, to rest reasons yet appears in a however, on the not, rule statu did Court decisions, line of rejected in some or even act” of “official definition tory follow Appeals should Court referenced simply It Birdsall. mention controls, leaving [the directly case 201(a)(3) after acknowl in dicta section of over prerogative Court] Supreme required “official that the act” edging (internal quota- decisions.” ruling its own 201(c)(1)(A) “pecu- produce could section majority's conclusion point, the Indeed, 3. On. of our sister and several our court conclu- its years cited Birdsall's Court reached “the Sun-Diamond have over the circuits See language approvingly. United ['of- term 'through [the] broad the definition sion ” 964, Muntain, n. 3 967-68 610 F.2d v. act’],' (quoting States Maj. Op. 1323 Sun- ficial broad (D.C.Cir.1979) (endorsing Birdsall's 1402), 408, Diamond, S.Ct. U.S. at 119 notwithstanding inapplicability its language through [the] clause particular, "in actions); States United challenged see also suit, matter, cause, proceed- any question, 'on Cir.1998); (5th Parker, ” v. 133 F.3d (quoting 18 controversy,' at 1323 ing id. Gjieli, 974-75 717 F.2d States v. United added), (final 201(a)(3)) alteration Carson, Cir.1983); (6th v. United States wrong. flatly Cir.1972); (2d Wilson 433-34 F.2d (4th States, Cir. F.2d United 1956). omitted) (alteration tions added)); home addresses of holding individuals cf. cer- States, Eberhart v. United 12, 126 546 U.S. tain Virginia automobile plates, 403, 407, (2005) S.Ct. 163 L.Ed.2d 14 (ap then hands the detective some cash. He plauding Seventh Circuit following Su gives the detective more cash after the preme precedent as “prudent provides detective information, course” rather than “fore[ing] either still more as an “incentive” to determine issue upsetting what took [it] to be our whether a “friend” of his has an outstand- precedents” settled or “bur[ying] the issue ing arrest warrant York. New by proceeding fashion”). in a summary guy wears a gold Rolex, drives a —who leased Mercedes-Benz, Not can the will Sun-Diamond dicta meet only night at a bear the local weight gas station, the majority saddles it and advises the with, the dicta detective to does no “read more than acknowl- between the lines”—(cid:127) edge “the tells the venerable maxim de minimis detective that he is a “federal ('the non curat lex judge.” says law He cares not tri- for that he wants the infor- * fles’) part [which] is mation because established “these f* *ing people background of legal principles owe me a against lot of money.” which all enactments adopted, The detective cannot know who .the which all enactments (absent contrary in- “judge” really is, why he wants the dication) are deemed Wis. accept.” to information. He cannot know whether the Dep’t Rev. v. Jr., Co., William Wrigley, “judge” is a loan shark seeking to find and 214, 231, U.S. punish debtors, his or whether he wants (1992) (last L.Ed.2d 174 two emphases the information because the individuals are added). is, That the “absurdities” de- his associates in a criminal enterprise, po- in Sun-Diamond scribed noth- constitute lice officers who are him, surveilling wit- ing other than de minimis exceptions.4 against him, nesses or targets of identity Sun-Diamond, See 526 U.S. at theft. The is wary: detective he uses S.Ct. 1402. another officer’s code to access the re- The point second is that this is a sim- stricted database and then runs the license ple far from inconsequential —but —case. number of the “judge’s” Mercedes, own The man on the street grasps my what learning only that the Mercedes leased. colleagues so majority inexplicably Nonetheless, end he takes the you resist: cannot give lawfully money to a repeatedly—and gives the “judge” cash— law enforcement officer for performing a the information he seeks. function of his office. I respectfully dis- sent. acts, For jury these convicted the de- tective of accepting an illegal gratuity —to GARLAND, Judge, Circuit with whom put bluntly, a “payoff.” Today, the court Judges Circuit SENTELLE, reverses the conviction on ground HENDERSON, RANDOLPH, and accepting such a gratuity does not consti- join, dissenting. BROWN tute a crime. Because the court’s decision guyA walks into a bar. He meets a is wrong, and because it undermines the police detective, asks him to search a law- prosecution corruption, I respect- enforcement database for the names fully dissent. anyone including Can my colleagues in the payments ities” totaling cash $400 — least to majority seriously contend that Supreme — Valdes his actions? Court would have added to its list of “absurd- to the national interface as an serves

I Na- as the known database enforcement to law relevant the facts Both (NCIC).2 Center Information Crime tional straightforward. case are have he would Blake told Valdes time,” because at a “one the plates run A J.E.A. this stuff.” “they monitor produced the aforementioned searches The defendant Valdes’ WALES addresses, De- Securi- Police and Social officer, names, Metropolitan home holders, all (MPD) plate Nelson detective of the license numbers ty partment had Blake, FBI fictions “judge” is William which were Valdes. the database FBI. into for the entered previously informant an undercover operation. at a Dis- undercover Valdes meeting preparation Detective After address- and home gave Blake the names nightclub, gave Valdes Columbia trict of one Blake, plate gave Valdes $200 who Virginia es several Valdes - also Blake out the on another. him find and $100 and asked occasion numbers out whether holders of find asked addresses names outstanding arrest warrant that he an told Valdes “friend” had Blake plates. those York, [him],” him another giving $100 and of’ New “take care 121-22; dol- J.E.A. a few incentive.” little more [himself] “make “a could Valdes (J.E.A.) (J.A.) indicat- 281. NCIC Appendix Appendix Exhibit Joint Joint lars.” warrant nightclub, outstanding leaving the was ed that there Upon a fiction—and “friend” —also bill. for Blake’s Valdes $50 Blake handed (re- J.E.A. Blake. advised Valdes so noted precautions taking the After that, informing Blake cording Valdes of ran Valdes opinion, to this the introduction check, nothing to the NCIC “[according through the numbers plate back”). comes Sys- Enforcement Area Washington Law conduct, foregoing For the (WALES), database tem restricted violation a bribe in accepting charged law with use for are authorized that officers 201(b)(2)(A). jury ac- § of 18 U.S.C. only,1 and purposes enforcement licenses, (driver's vehicle 302.6, (J.E.A. vehicle at 6 information Order MPD General 1. See numbers), identification registrations, vehicle 94) (“Information NCIC [and] from-WALES aliases, numbers, fingerprint legitimate security be used for ... shall social (stating only.’1); classifications, per- id. purposes particular warnings about enforcement inquiries or "making employees missing sons, cars that MPD both attempts to locate arid [Re- on the Wales receiving addition, information 'WALES' interfaces In people. termi- Network] Information gional Arrest records enforcement other law several extraordinary precautions to shall take nals] including Law Enforce- National systems, observable is not ensure this information ('NLETS'), System Telecommunication ment v. States persons''); United to unauthorized exchange be- of information which allows Cir.2003) (11th Jordan, 316 F.3d is main- databases and State tween individual ("Access circumscribed NCIC Invеstigation of Bureau the Federal tained utilized for requiring be [it] strict rules Sys- ('FBI'); Justice Criminal Information only.”). purposes law enforcement informa- ('CJIS'), arrest which contains tem ..., police district[s] tion from history informa- criminal 2. WALES "contains ('NCIC'), information, Center arrests, Crime Information National regarding address tion birth, sex, by the FBI.'' United (race, maintained which description date physical Hutchinson, markings), police 408 F.3d weight, any height, scars States numbers, (D.C.Cir.2005). identification and correctional motor also It contains information. warrant quitted charge, him of that but acts convicted constituted “official within act[s]” meaning him of the lesser included offense of ac- of the statute. cepting illegal gratuity in violation of 18 201(a)(3) Subsection defines “official 201(c)(1)(B). § Supreme As the purposes act”—for gratuity both the explained in United States v. Sun- and the bribery subsections—to mean “[1] Growers,

Diamond the difference between any aetion[, decision or any question, 2] bribery is one of intent. See matter, cause, suit, proceeding or contro- ‍‌‌​‌‌‌‌​‌‌​​‌​‌‌‌‌​‌​​​​​​‌‌​‌​​‌​‌‌‌​​‌​​‌​​​‌​‍526 U.S. L.Ed.2d 576 cepting a 398, 404-05, bribe, (1999). one must To “corruptly” guilty of ac- 143 versy, re- ing, or fore which ^[3] may by official, law be any in such official’s time brought pend- be- ceive a “in payment return for ... being official capacity, or in such official’s place performance influenced in the offi- 201(a)(3). trust profit.” Id. 201(b)(2)(A). cial act.” 18 U.S.C. One Valdes’ conduct satisfies all parts three guilty accepting can be an illegal gratui- the statutory definition. The following ty, however, simply for accepting pay- discussion outlines points the essential ment “for or of’ performance because analysis; the areas of disagreement 201(c)(1)(B). of an official act. Id. In with opinion of the court are discussed words, in succeeding Parts. for bribery there a quid pro must be First, or, Valdes made a “deсision”— quo specific intent to give or receive —a even clearly, more took an “action.” He something of exchange value in for an decided to and did initiate WALES checks official act. An illegal gratuity, on the plate the license gave numbers Blake hand, may merely constitute a re- him. He did the regarding same the name ward some future act that the public gave Blake him for purpose of conduct- (and official may will take already have ing a search. warrant take), determined to a past or for act Second, the action that Valdes took was already he has taken. “question on a matter.” [or] However Sun-Diamond, 404-05, 526 U.S. at 119 vague be, those terms can there be no S.Ct. 1402. It is from his conviction for dispute that a “matter” includes an “inves- accepting an unlawful that Valdes (con- tigation.” Arg. See Oral Tr. at 70-71 appeals. by cession Valdes’ counsel that a “matter” Indeed, includes an “investigation”). an-

B other section of chapter the same Code, United States which bars a former The gratuity subsection of section 201 official making appearances in con- makes it a “public crime for a official” to nection with “particular matter” in which or “accept[ “anything “reeeiv[e]” ]” of val- the official participated gov- had while in personally ue for or because of official ernment, expressly “particular defines performed act performed or to by such be including “any matter” as investigation.” 201(c)(1)(B). § official.” 18 U.S.C. There 207(f)(3); 205(h) § § see also id. dispute is no Valdes was a (defining a “covered matter” under anoth- (statutorily official defined including provision, er Code as including an employees Columbia, of the District of id. “investigation”). 201(a)(1)), personally and that he accept- ($450) something ed of value for or be- Finally, an investigation clearly is a mat- cause of the acts he took at Blake’s re- “may ter pending, time be quest. issue is whether those may by brought [that] before” may by law pending, [that] of be place capacity [or] his “official

Valdes official, in such any public brought before de- police was a Valdes profit.” trust ac- But even capacity.” official definition, towas official’s by job, tective whose formulation, is there court’s Indeed, cepting the in the doc- investigations. conduct As the conclusion. as to dispute to access still gain to signed Valdes ument that “ inves- police ‘Should use the court states: to he intended WALES, stated that he clearly ques- is person?’ tigate investi- criminal “conduct to the database Court government.” by the J.E.A. tion answered checks'.” background gations receiving “[providing And Op. noted at 1326. 84. And 83; also J.E.A. see of, initi- to for, decisions WALES, or because gifts he was used above, when conclude, accelerate, retard, or skew ate, he to which database a restricted using unquestionably investigation police] as a his status [a only by virtue had access Id. at 201.” prohibited conduct officer. ground, common identified Having al- ground, common this is Much of disagree- the field of Part addresses next conclusions its court reaches though the evi- sufficient there was court, ment: whether According to route. a different ac- find that Valdes’ jury to for a dence and ‘matter’ ‘question’ words “the investigation an amounted tions they keep,” company known official act. therefore 1323-24, those and hence atOp. interpreted must be terms general more II as the processes” the same “class reflect listed series the six-term that an agree other terms and I court Although the act, id. at the definition act” within is аn “official investigation argument 201(a)(3), There is reasonable the court meaning of subsection instead intended broaden cannot—as series was conduct Valdes’ holds that limit it. definition, rather than statutory investigation. of law—constitute matter Valdes, F.3d States v. See United untenable. holding That (Henderson, J., (D.C.Cir.2006) dis- 1284-85 A event, court con- But in the

senting). investigation is the police “a cedes that light in the most Viewing the “evidence ‘question, processes of same class must, we government” to the favorable suit, or contro- matter, cause, proceeding, 116, Alexander, F.3d v. United States ” Thus, at 1325-26. versy.’ Op. Court (internal (D.C.Cir.2003) quotation appropriate of on court’s view even Detective omitted), actions that marks subsection interpreting approach routine are the in this case took Valdes investigation constitutes 201(a)(3), an take in a wide police officers steps that at 1325. “official See id. act.” Running license investigations. variety of checking for outstand- and numbers plate “six- further insists that The court informa- important provide ing warrants questions a class of refers to term series witnesses, suspects and tion about both disposition is or whose answer or matters separate one helping police at often Id. by government.” determined why That is other. from the what work I am not certain 1324. first in the to WALES already sought access beyond performs that formulation investigations “conduct criminal place express requirement accomplished —to In- 83. J.E.A. background checks.” 201(a)(3) question of subsection Co- deed, law of the District case any time “may at matter must be one did, quiries references to the he replete lumbia is one would doubt that he conducting “investigation.” for these and other investi- was use of WALES But if gative purposes.3 Valdes’ conduct would constitute an official circumstances, act under those then the 1. The court dismisses the acts taken fact response that he acted in to an outsid- by Valdes as the “ascertainment an- request er’s rather than an instruction questions, Op. swers” to a few Court at supervisor from a cannot save him: “offi- 1326, “simple interrogative and as activi- cial act” is defined in terms a “decision ty,” many at But id. 1328. investi- action,” it, regardless of who requests A gations quite brief. WALES search only and the requires statute that the “de- minutes, yet take a few in that cision or be on a “question action” [or] it suspect interval can eliminate a or con- “may matter” that at time be pending, fugitive.4 investiga- firm that he is a Some may by brought [that] law be before” begin single end with a step: tions him in capacity. his official running tags. step may That tell a 201(a)(3) added). Moreover, (emphasis person traffic officer that he has no one—neither the defendant nor the crime,5 for a stopped wanted he disputes that an officer would be court — just way a minister his to church. liable under section 201 if he accepted brevity inquiry, of an and the limited money as a running reward for not steps required number of to achieve its WALES search on a driver’s license dur- object, enough certainly cannot alone be — ing stop. a traffic Arg. See Oral Tr. at 12- not as a matter of law—to rule it out as an 13; Op. Court at 1325-26.7 investigation covered the statute.6 analysis “disaggregate^]” suggests This neither The court another flaw “generalized” steps government’s nor taken an the case is that in- Valdes’ investigation, require holding vestigation nor “activity did not involve in the does world,” “every question asked answered” real that it “imaginary,” Op. is an “action” on a “matter.” pure that it was “a Op. fiction.” Court is, course, 1326. If Valdes had been In ordered 1328. one sense that superior officer to make the in- true. WALES The case involved an undercover See, Hutchinson, 797-802; See, Alameida, e.g., e.g., 408 F.3d at Anderson v. F.3d Columbia, (9th Cir.2005) (defendant Dorman District 888 F.2d placed (D.C.Cir.1989); Duggan 160-61 v. District custody fugitive justice” "in as a after Columbia, (D.C.2005); 884 A.2d outstanding NCIC check revealed an arrest States, Thomas v. United 731 A.2d 418 warrant); States, v. United Childress 381 A.2d States, (D.C.1999); Duncan v. United 629 (D.C. 1977) (defendant 614, 616 arrested after (D.C.1993). A.2d n.1 warrant). outstanding WALES check revealed See, Hutchinson, e.g., ("By 4. 408 F.3d at 801 Moreover, 6. the reason that Valdes' con- confirming that Hutchinson was or was either govern- duct ended when it did was that the providing not false identification information ment arrested Valdes had him. shown no police, ultimately to the a ‘WALES' check unwilling indication that he was to continue evaluating could assist Detective Hilliard in requested to conduct WALES searches —or stabbing whether or not was Hutchinson the investigatory steps indefinitely. take other Thomas, — suspect.”); (noting at A.2d began suspect that the officer that the de- Ahn, 7. United States v. 231 F.3d 26 identity running fendant had falsified his after Cf. Duncan, (D.C.Cir.2000) check); (upholding a WALES an MPD officer’s 629 A.2d at 1 n. 1 (stating guilty plea accepting illegal gratuity a that WALES check disclosed that an for suspect's suspended). reporting illegal activity). the had license been not an issue (“Exactly developed how play- of the in each which “sting” operation possibly qualifies in- it must defendant —was than ers—other are a law is operations brought But such to be or able pending fictitious. deed decide.”). bribery prosecutions,8 not something we need staple that its assure us pains takes court vein, argues the court that In a related on law en- “no have effect will decision gave presented Valdes scenario “the ‘sting’ opera- ability to conduct forcement’s officer, him, police nor neither case the fact that tions,” that investigation for officiаl any reason analy- its irrelevant to sting a involved sought Blake whom individuals for at 1326. Op. sis. Court Id. at or warrant information.” number involved case the fact Once sting is removed But 1329. once equation, howev- from the removed sting is scenario, the reason it is clear that means the court what er, unclear it is would is that Valdes “reason” there was no be- queries says that “Valdes’s it when license number investigated the have not police incipient ... active to no longed request. Blake’s unlawful but for holders they did at investigation,” id. definition from the Removing a case such “some sort of amount to not act,” however, strikes at the of “official id., that the issue was investigation,” under subsec- bribery prosecutions core of to an supposition only by pure “linked of- 201(b)(2)(A), punishes public tion matter,” id. at 1329. future imaginary they acts take official ficials who to define what attempt not court does being take but have reason to saying “investigation,” would constitute a bribe. If payment influenced “at must be least matter only that correct, suc- were underlying argument [must issue court’s and “the nascent” at Id. under degree.” bribery to some prosecutions have] surfaced cessful was matter before Valdes the same depend upon But the provision—which already sur- and had pros- more than nascent act” of “official definition to an linked His was not faced. conduct possible. not ecutions—would investigation; was “imaginary future” any doubt that in- there 2. Nor is con- investigation. Valdes itself an actual Valdes vestigation undertaken on five investigation background ducted a is, investiga- investigation —that Blake was matter individuals. This in his “official by Valdes tion undertaken Valdes, that was actually “brought before” 201(a)(3). At one capacity.” 18 present, him the “pending” before alludes opinion, the court point its present upon “act[ed]” which he Op. see Court “moonlighting,” practice of 201(a)(3). re- With tense. 18 U.S.C. connotations, multiple at word the dissent court and spect, it is the not But benign.9 not all which define the outer bounds that does “not for Blake his efforts 1326; did undertake see id. theory.” Op. [its] immigration bill for fictitious See, private Washington, duce e.g., States United alien). (bribe (D.C.Cir.1997) to offi- F.3d 983 "protection” a fictitious provide for cer to Online, Dictionary English Compare 9. Oxford Neville, dealer); F.3d v. 82 drug United States (defining "moonlighting” http://www.oed.com (bribe (D.C.Cir.1996) jail guard from 1101 doing paid work in addi- practice of as "[t]he dealer); v. Kel- drug United States a fictitious regular employment”), with id. tion to one's ("Abscam” (D.C.Cir.1984) per- defining ly, (alternatively "[t]he 691 the term 748 F.2d by night”). an illicit action case, formance congressman to intro- of involving bribe to

1339 scope the of his official employ- outside whether cars that neighborhood cruise its merely “parallel[ ment. He did not ]” his belong to rival gang members —or to un- work,” 1326, “regular Op. at run- dercover officers.10 may Its leaders want ning plates down license and warrants dur- to learn the home addresses or identities hours, ing off traveling multiple his testify witnesses who could against departments motor vehicles or courthouses them at a trial or a grand jury.11 to learn the information as a member of They may want they know whether general public the In- would have to do. their associates have outstanding war- stead, he conducted the searches on his rants.12 And a gang interested in identity police computer by WALES, accessing may simply names,’ theft want the address- database that full es, he knew well could be numbers, Social Security and other only used for official business. See J.E.A. personal identifiers that WALES and simi- (Valdes’ personal 87 acknowledgment, on a lar law enforcement databases hold. Sеe training questionnaire, WALES supra note 2 (listing personal data con- systems “[u]se WALES NCIC in tained WALES and associated databas- es).

is for criminal purpose[s],” Justice Although it turns out that none of “[i]mproper use or dissemination these were the “judge” motives in information sys- contained within case, these this Valdes could not have known in,” alia, tems could result inter criminal event, that. in any And corruptness prosecution); J.E.A. 111 (recording of payor’s payee’s motive is not an telling Valdes only Blake that he run could element of offense. See Sun- “ one at a they search time ‘cause Diamond, monitor 404-05, 526 U.S. stuff’); supra sources cited note (regulations restricting WALES to “official Finally, I note the defendant’s argu- legitimate law purposes only” enforcement ment that his WALES searches cannot and warning employees MPD to “take ex- constitute an investigation they because

traordinary precautions to that this ensure yielded only publicly available information. information is not observable to unautho- The court adopt does not that argument, Indeed, rized persons”). tape of a tele- rightly argument so. The fails for call phone makes clear that spoke three reasons. to Blake from police department, while he process of entering the First, nothing statutory language plate numbers into the computer requires that an “official act” involve infor- (the audible). clicks are J.E.A. 127. publicly mation that otherwise avail-

Moreover, steps And, fact, taken many Detective able. police investiga- Valdes are not investiga- kinds of might tions involve what “public called steps take; tive that police officers source” legally information: the observation of they streets, are also the kinds of investigations cars on public the surveillanсe of paid police criminals have suspects in public places, inspection officers take illegal curb, their own A purposes. trash cans at questioning and the know, drug crew example, want to neighbors and other witnesses. Al- 10. See, Sedoma, 22, 27; 11. See, Sedoma, e.g., 332 F.3d United States v. 332 F.3d at e.g., Gor 20, Middlesex, (1st Cir.2003); 268 N.J.Super. Borough 27-28 don v. v. United States (1993). A.2d Herrera, (5th Fed.Appx. Cir. 2006). 447; 12. See, Herrera, e.g., United States Ruiz, (1st 1990). 905 F.2d Cir. Blake a a Had been that he had warrant. done things can be all these

though District, have in this would they drug are within dealer investigators, private by the done information: know- uniquely 201 when valuable section been scope of “friend” not show his did police. ing that WALES a that friend bet- wanted would make was that the Second, at all certain it is not courier, would drug since he as a ter bet public- was gave information Valdes Blake and searched likely to be arrested be less contends Although Valdes ly available. stop. traffic after a ob- investigator could have private that a addresses the home tained excluding sum, ground In there is De- Virginia’s by going plate holders scope investigation from Valdes’ Vehicles, a stat- Motor federal partment offense. U.S.C. See 18 suggests otherwise. ute in- personal disclosure (limiting B addresses, con- formation, such as drivers’ records).13 in state motor vehicle tained precedents two court asserts that The Third, dis that Valdes the information conduct compel its conclusion that Valdes’ a much “confidential” in was closed fact coverage of subsection outside the falls just not Valdes did important more sense. 201(c). Neither, however, supports that the home Blake of addresses advise result. he of certain individuals:

warrant status In States v. Swrir-Diamond 1. United held government’s him told what the files Growers, reversed a Supreme Court See, subjеcts. e.g., J.E.A. on those under sub- trade association’s conviction that, notifying Blake (recording of Valdes 201(c)(1)(A) giving Agriculture section check, nothing “[a]ccording to the NCIC gratuities Secretary Espy illegal Michael to the outstand respect back” with comes tickets, (including sports luggage, added)). in That ing (emphasis warrant meals). charged judge The trial had ordinary to an formation is not available guilty find the association jury that it could private investigator because citizen or unauthorized “provided Espy if it only to enforce WALES accessible pub- because he held compensation simply on official See ment officers business. that,the office,” need “government lic knowing 1. supra cited note And sources alleged gratuity prove say files has val government’s what the specific or identifiable official linked own, efficiency beyond ue of its the mere 403, 119 at all.” 526 U.S. at act or act acquisition. information When held that the statu- S.Ct. 1402. stops a car the District of Colum officer tory phrase, “for or because of official bia, he can the driver’s status check means performed act or to be performed,” however, WALES; cannot, accessing he particular “for or official because some York Virginia up to New drive down not “for or because of acts $450, act” and public records. For Blake to check Id. at general.” just his “friend” had a learned not whether case, said, the that not the the Court warrant, show Were but whether WALES would See, that, narrowly. e.g., ception Dis because said contends Blake Wemhoff Columbia, (D.C. money, trict A.2d him data holders owed (b)(4) 2005) (holding can statutory excep- that subsection under have been available a bona fide litigation.” when there is inves anticipation of invoked tion for use "in litiga "likely” 2721(b)(4). tigation relating to actual But not men- Blake did tion). the ex- litigation, and courts have read tion

1341 “music” in Sun-Diamond criminalize, example, to- “would reflects a statute on desire to rein in the broad gifts” given language officials “based ken 201 position[s] (though contrapuntal ‍‌‌​‌‌‌‌​‌‌​​‌​‌‌‌‌​‌​​​​​​‌‌​‌​​‌​‌‌‌​​‌​​‌​​​‌​‍not linked to section there is [their] Birdsall, 406-07, act.” Id. at 119 music in United States v. any identifiable 233 223, include, 230, 512, the Court U.S. 34 1402. These could S.Ct. 58 L.Ed. 930 S.Ct. (1914), jersey given Judge to the as suggested, sports pointed a Henderson has Valdes, out, see during team a President an athletic 437 F.3d at 1287 n. visit, (Henderson, J., cap given dissenting)). House a school 10 White Su- Secretary preme preference interpreting the Education on the occasion of Court’s school, a high complimen- “scalpel” his visit to a or the statute as a rather than a axe,” in tary Agriculture Secretary lunch for the “meat cited in in opinion this court’s case, conjunction speech group his to a the instant is melody. one such Sun-Diamond, Id. government to Requiring farmers. the U.S. at act, said, 1402, quoted in Court prove Op. an identifiable the Court at 1323. But Sun-Diamond did not prevent suggest such results. that such narrowing accomplished should be arbi- dictum, the Sun-Diamond Court In Rather, trarily. Supreme as the Court require- worried that an “identifiable act” expressly, way appropriately said might wholly prob- ment still not solve the accomplish require is to end lem, gifts regarded because such could “be statutory action fall within official’s conferred, having been because definition “official act.” “[W]hen of the or official’s President position a particular violation is linked to ‘official Secretary,” “for or because of’ the but also ” act,’ said, possible “it is team, sports receiving official acts of through the defi- eliminate the absurdities school, visiting high speaking or to the nition that term.” at U.S. Id. farmers. 119 S.Ct. 1402. “The (emphasis original). in S.Ct. said, objection,” answer to this the Court is may those actions “are not ‘official acts’ Wfiiileit be absurd to describe re- statute,” meaning ceiving sports visiting high team or a within the which act, dispute ‘any “defines ‘official act’ to mean decision school as an official there is no matter, fairly any question, police investigation or action on cause that a can suit, way. initi- proceeding controversy, may described Because the pending, may by investigation time be or which ation of such is a “decision official, “question on a matter” that brought law be such or action” [or] brought capacity, pending, official’s official such offi- “be ” Id. police detective in his “official place profit.’ (quot- cial’s of trust or before” a 201(a)(3)). th[e] statutory ing capacity,” “definition of term” any argu- “official act” eliminates Nothing in either hold- Sun-Diamond’s conduct falls outside the ment that Valdes’ (that ing illegal gratuity re- conviction 201(c). Hence, scope affirming of section quires a connection between the faithful to his conviction would be both act) (that and an identifiable or its dictum words and the music of the Sun-Diamond team, sports receiving activities such as opinion. school, visiting high speaking to farm- precedent 2. The other cited ers do not constitute “official acts” within statute) our own decision in United States our court meaning precludes Muntain, (D.C.Cir.1979). F.2d finding support sufficient evidence to Depart- certainly The defendant in that case was Valdes’ conviction. There detective, the kind of was a Development and Urban Housing ment of police in- of ac- in this case—a official, was convicted matter involved (HUD) who assisting his have gratuities could illegal vestigation unquestionably cepting — marketing pri- in co-cоnspirators him in his alleged brought before pending or been unions. to labor insurance automobile vate Accordingly, neither capacity. both Muntain’s involved That assistance any supports case nor Muntain get his his efforts acts and personal today. court reaches that the result him. As the help subordinates HUD reversing Muntain’s in explained court III govern- conviction, problem that there was sufficient My conclusion of evidence the absence was ment’s case jury to reasonable find evidence for a as a automobile insurance “that suggesting investiga- conduct constituted Valdes’ within HUD’s unions fell for labor benefit act, tion, is sufficient and hence an official “pro- at 966. Because jurisdiction.” Id. of this issue. See my analysis to end did insurance” mot[ing] group automobile 443 U.S. Virginia, be subject which could Jackson “involv[e] not (1979) or, (holding mat- for that 61 L.Ed.2d 560 brought Muntain S.Ct. ter, in an official anyone at HUD else to sustain a ver- that evidence is sufficient danger apparent capacity, [there was] could have “any if rational trier of fact dict gratuities con- receipt that the crime of the found the essential elements insur- group automobile nection with the doubt”).14 court, beyond a reasonable induce Muntain act ance scheme would contrast, go must further. Because deciding a HUD-related improperly conduct did not con- concludes that Valdes’ “determinative Id. at 968. The matter.” investigation, go it must on to stitute an factor,” held, was “whether Muntain’s we whether that conduct—viewed consider directing and in personally actions”—both as an information disclosure —none- simply a matter or his subordinates —“involved of “official compass falls within the theless law, properly, that could issue I need to decide that Although act.” do not him as an Assistant to the brought before compelled I to address trou- question, am at 969. Secretary” of HUD. Id. “Since analysis. bling aspects of the court’s insurance promotion group automobile matter,” concluded not such a we A and, hence, act occurred “that no official court, (c) “[e]xcept in lim- According to the cannot be invoked.” 201[ ] 18 U.S.C. involving like those Id. ited circumstances” established procedures formal statutory important Muntain reflects (FOIA), “we of Information Act Freedom scope gratuity pro- limitation on the that a of information do not believe release the action at issue must involve vision: a ‘decision or action on can constitute time question or matter “which cause, suit, matter, proceeding, question, pending, may by or which law be ” controversy.’ Op. at 1329 “offi- brought before” the defendant his 201(a)(3)); 201(a)(3). see id. (quoting 18 U.S.C. capacity.” cial Hence, court’s inter- 1329-30.15 under the That limitation is satisfied here. Valdes people, that fact would separate information about real I address the issue of the errone- jury ous in Part IV. questions, instruction his not have transformed five ("Even Op. at 1326-27 if 15. See also Court sought plate and warrant Blake had drug Congress may if a dealer were to reward pretation, well—and often pro does— names, him providing with the scribe the in multiple same conduct stat addresses, Security num-

home and Social Williams, utes. See United States v. (or witnesses, taking bers (D.C.Cir.2000) (“It F.3d giving) money would not constitute an cumulative.”). uncommon for laws to be gratuity unlawful the dealer also —unless And it would be neither troubling nor sur request. a FOIA The same filed would be prising if punished section 201 the disclo (or identity if an thief a commercial true sure of pay information for severely more enterprise seeking augment its custom- than other punished laws the mere disclo list16) paid providing er Valdes for such sure alone. Disclosing information pay for information. The same would be true if venality adds a level of legislature that the paid running Valdes were for DNA or certainly warranted in punishing with fingerprint checks. And the same would greater severity. drug true if a company, rather than a dealer, drug rewarded an FDA scientist The court also pos- consoles us with the disclosing confidential information that, sibility if money Valdes took offered agency’s plans about the for approving the to induce him to provide confidential infor- company’s drugs. mation, “might qualify ‘in [an act] ” possibili- The court consoles us with the violation duty’ of the official public of a that, circumstances, ty under such Valdes’ official. atOp. Court 1329. If it did so might information disclosure violate one of qualify, might Valdes’ conduct violate a array an specific non-disclosure stat- statute, different bribery subsection of the (It not, however, utes. would violate the 201(b)(2)(C), subsection punishes if drug why laws Valdes did not know public official for corruptly accepting pay- information.) drug dealer wanted the In ment in “being return for induced to do fact, it any is not at all clear that any ... act in violation of [his] official court, see duty.” criminal statutes cited possibility That is not much conso- 1324-25, 1329-30, Op. ap- would lation. situation; ply to Valdes’ and it is extreme- First, this circuit has never had occasion ly any doubtful that apply to the to' meaning duty” construe the of “official private paid money. citizen who him the 201(b)(2)(C), under subsection let alone to But if even a non-disclosure statute did explain meaning how differs from the apply, correctly the court concedes that ' “official act” under possibility subsection Valdes violated another 201(b)(2)(A).17 “implies nothing varying expla- statute direct Nor are the about his Id. at 1325. nаtions offered culpability under 201.” particu- circuits answers, both, any being public Valdes’s ... directly into ... ... official or indi- ‘matter,’ etc., kind covered rectly, corruptly accepts anything ... ... 201(a)(3).”) (A) being value ... in return for: influ- performance enced in the States, Parks v. United 355 F.2d Cf. act; (C) being ... [or] induced to do or to (5th 1965) (affirming bribery Cir. convic omit to do act in violation of the official influencing sergeant tion for Force Air “to duty person; of such official or ... shall sell names of the recruits which were in imprisoned fined ... or ... both.... custody his and control” to a life insurance 201(b)(2) added). (emphasis salesman). 201(b)(2) part, In relevant subsection whoever, states 201(b)(2)(A)) (unlike § parallel tion has no The court thus holds out larly helpful.18 (§ 201(c)(1)). bribery un- prosecution gratuities in the subsection possibility of meaning, Hence, of uncertain paid if a officialis cash as an a subsection der possibility of such a eliminating while after-the-fact “reward” —not as an “induce under subsection prosecution informa disclosing ment”—for confidential 201(b)(2)(A).19 analysis The court’s elimi- tion, under payment is not unlawful because, if it is possibility the latter nates Sun-Diamond, analysis. the court’s See in violation of subsection not a 404-05, 119 (explain 526 U.S. at S.Ct. money 201(c)(1)(B) accept for Valdes bribery quid that “for there must be ing “for or because” he drug dealer from a “illegal gratuity pro quo,” while searches, it cannot conducted WALES merely constitute a reward some bribery in violation subsection past ... for a act that [the future act 201(b)(2)(A) money if that “influ- even taken”). already has That is true official] those searches. him to conduct ence[s]” described above— for all of the “rewards” so because both subsections That by an ranging one'paid to a detective (b)(2)(A) 201(c)(1)(B) require an “offi- dealer, identity drug paid thief or to one to act,” rely both on the cial and because by drug company. an FDA scientist of that term. See 18 same definition 201(a)(3). Indeed, on the court’s in Although noting the court is correct bribery under analysis, it cannot even be bribery provision that the covers more 201(b)(1)(A) drug for the dealer to section gratuity provi- than the “predicate acts” pay to influence the detective to conduct sion, that concluding it has no warrant for such searches. applying the latter to Valdes’ conduct disturb a “kind of balance” chosen

Second, principal problem 1327; by Congress. Op. at see id. permit court’s decision is not that it will nothing in certainly at 1327-28. There is officials, our but criminals to bribe legislative history suggest that Con- permit that it will them to reward those gress gratuity predicate intended the to be duty” Even if the “official sub- officials. so narrow as to exclude conduct like that bribery statute section Valdes, thief, (§ 201(b)(2)(C)) identity or like that of apply payment does to a induce, dealer, drug drug company of confiden- noted above. intended to disclosure information, Although saying the court is correct tial subsec- Indeed, by appropriate principal case cited most in. the case of bribes to court, States, 355 F.2d at 168— Parks United directly specific induce actions that violate a duty” that both the- "official and the holds duty.”). provisions act” cover the case of an "official sergeant Air Force who sells the names of See, Sutton, e.g., United States v. 801 F.2d new recruits to an insurance salesman —a (D.C.Cir.1986) (conviction 1346 under "offi directly contrary view of the statute that is prong bribery cial act” statute based in today. that taken the court See also Unit part payment disclosure of confidential Parker, (5th ed States v. 133 F.3d 325-26 regarding Department Energy information Cir.1998) (interpreting that violate an "[a]cts Parks, negotiations); settlement 355 F.2d at duly” official’s as a "official subset of (upholding bribery paying conviction for act[s]”); Alfisi, United States v. 308 F.3d Cir.2002) ("Subsections (A) sergeant (2d an Air Force to sell names of new 151 n. (C) recruits, undoubtedly overlap payment in some considerable because the was made measure, (A) although resort seems most "with intent to influence his ... action on regarding appropriate in the case of bribes pending ... matter ... ... him” before involving judgment decisions the exercise of (omissions original)). discretion, (C) while use of would be corruption of it “is the official deci- but convicted of the may well have lesser— through the misuse of sions beneficiary resolution, been the of such a influence governmental decision-making which the possibility of which the court now criminal,” bribery statute makes id. at takes off the table. Muntain, (quoting F.2d at 968 added)), (emphasis the gratuity provision B prevent creeping

reaches further corruption arise as the result of There nothing plain in the language of giving receiving rewards for official 201(a)(3)’s subsection definition of official Report acts. As the House accompanying act precludes it from encompassing passage of the current statute ex- agency’s disclosure of an the na- —or plained, the “conduct which is forbidden” pay. tion’s—secrets for Whether to dis- gratuity provision “has the appear- close such information reasonably can ance of evil and the of serving as capacity viewed as a “decision or action” on a 87-748, H.R.Rep. cover evil.” No. “question “may matter” that [or] law be (1961). Defining provision so nar- brought any public official, in such rowly preclude prosecution as to of infor- official’s official capacity.” The court except mation disclosure in FOIA cases rightly warns that “every question-and-an- congressional contravenes intent and elimi- swer between an official a citizen nates an important routinely by tool used brought can[not] be within the statute.” prosecutors to fight public corruption.20 Op. Court I certainly 1329-30. agree Third, disposition the court’s of this that the term “question” does not encom- question public does officials no pass any favor. Be- sentence that in a question ends opinion impossi- Instead, cause the court’s makes it indicates, mark. as Muntain ble for a prosecutor charge, jury or the types “questions” covered section 201 upon, to settle a lesser included may offense for are those that “pending” “may conduct that people most brought consider law be before” the defendant criminal, it it likely public makes more that those official. See 610 F.2d at 969. But who undertake such conduct will be why there is no reason we must conclude charged with and greater convicted of the that Valdes’ conduct in this case did not Indeed, bribery.21 offense of just Valdes—who constitute an “ques- action on such a jury acquitted greater of the offense tion.” To find Valdes’ conduct covered See, Gaines, e.g., jury United States v. Nos. 92- argue instruction on a lesser offense to 92-5501, 5446, (4th 1993 WL 220206 Cir. that a defendant be better off without 23, 1993) conviction, (illegal gratuities June True, prosecution such an instruction. if the supplying in which the official acts were the beyond has not established a reasonable "confidential, sensitive, and classified” every charged, doubt element of the offense Navy contractors); information to defense offered, and if no lesser offense instruction is (2d Greenberg, United States v. 444 F.2d 369 must, matter, jury as a theoretical return 1971) (illegal gratuity sting Cir. conviction in a acquittal. a verdict of But a defеndant is operation, where provid the official act was entitled to a lesser offense ... instruction ing tion); concerning investiga information an IRS precisely exposed because he should not be Viviano, United States v. 437 F.2d 295 jury's practice the substantial risk that the (2d 1971) (conviction sting operation in a Cir. diverge theory. will Where one of the offering for confidential infor charged elements of the offense files). remains in mation from IRS doubt, plainly guilty but the defendant is States, 21. See Keeble v. United 412 U.S. offense, jury likely some is to resolve its 212-13, (1973) 93 S.Ct. 36 L.Ed.2d 844 conviction.”). doubts in favor of ("[I]t petitioner’s is no answer to demand for rv “judicial not to work a the statute is text, congressional Court extension” of Finally, agree my colleagues I rather, 1328; contrary court’s Op. at jury judge’s the district instruction judicial contraction. holding effects definition of “official act” was error. Op. judge Court at 1325. The refused the because, this result in The court reaches request defendant’s to include the statuto view, my “question” it misconstrues the 201(a)(3), ry in definition set out subsection actually at issue Valdes’ case. is jury that and instead instructed the “the not, sug- as the court “question” term official act means decision or request to Blake’s gests referring scope public action within the offi holder: the name the license “What is authority.” cial’s J.A. 721. That refusal you do live?” your name?” “Where conflicts with Sun-Diamond’s directive Rather, Op. at Court act],” focus on “the [official definition question government’s is: do the “What (emphasis 526 U.S. at S.Ct. name address?” show is the files original), right and the court is in hold That question “pending” was ing satisfy cannot its official,” namely “brought before [a] showing burden of the error was Valdes. And because access WALES is harmless, 1325-26; Op. Sun- cf. personnel, restricted to enforcement Diamond, 412-14, 526 U.S. at question is a that Valdes could answer (rejecting a claim that an erroneous capacity, place in his “official or in [his] jury concerning scope instruction profit.” In trust the court’s own formu- 201(c) harmless). subsection lation, that question govern- do the —What But my colleagues’ conclusion that the “[q]uestion[ ment’s files show?—is a ] jury instruction was error is without con- subject government.” to resolution sequence analysis. they to their Because Indeed, Op. just Court “ at 1323-24. jury that no hold reasonable could have police investigate per- ‘Should the found Valdes’ conduct to constitute an offi- clearly question son?’ answered act, jury cial instruction could have government,” id. at so too is conviction, against saved and the case “Should the disclose the contents of me, by him must be dismissed. For con- law enforcement computer files?” trast, consequence. the error is of Be- harmless, None of this conflicts with dictum of judgment cause it was not Sun-Diamond. As in Part discussed II. I regard must be reversed. But because above, aimed, B.l that dictum was as the properly the evidence as sufficient for a said, preventing jury Court itself absurdities accept- instructed to convict Valdes of becoming gratuities ing illegal gratuity, I like would remand the —absurdities gift jersey of a for case for a new trial. receiving sports House, gift team at the White or the of a V

cap visiting a high school. But there is nothing barring govern- absurd about In a well-intentioned effort to avoid taking ment official from as a cash reward in reading broadly section 201 so as to disclosing the contents of restricted clude the absurdities described in the not, not, dictum, files. We should and we need Sun-Diamond ‍‌‌​‌‌‌‌​‌‌​​‌​‌‌‌‌​‌​​​​​​‌‌​‌​​‌​‌‌‌​​‌​​‌​​​‌​‍the court has de prosecution foreclose important weapon of such behavior nied the by the manner in which we in fighting corruption. decide this It is one thing interpret case. “scalpel” section as a Op. at axe.” Court than a “meat rather Sun-Diamond, 526 U.S. (quoting 1402). another to quite It is itself. Be- on the statute scalpel

turn the has that unintended today’s decision

cause respectfully I dissent.

consequence, America, Appellee

UNITED STATES PICKETT, Appellant.

Lorenzo 05-3179.

No. Appeals,

United States

District of Columbia Circuit. 20, 2006.

Argued Nov. 13, 2007.

Decided Feb.

Case Details

Case Name: United States v. Valdes, Nelson

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

Date Published: Feb 9, 2007

Citation: 475 F.3d 1319

Docket Number: 03-3066

Court Abbreviation: D.C. Cir.