United States v. David Paitsel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 27, 2025 Decided August 1, 2025

No. 23-3212

UNITED STATES OF AMERICA,

APPELLEE

v.

DAVID PAITSEL,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cr-00156-2)

Linda Julin McNamara argued the cause and filed the

briefs for appellant.

Katherine M. Kelly, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Matthew M.

Graves, U.S. Attorney, at the time the brief was filed, and

Chrisellen R. Kolb, Nicholas P. Coleman, Elizabeth A. Aloi,

and John W. Borchert, Assistant U.S. Attorneys.

Before: MILLETT and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge WILKINS.

Dissenting opinion filed by Senior Circuit Judge

RANDOLPH.

WILKINS, Circuit Judge: Defendant-Appellant and former

Federal Bureau of Investigation (“FBI”) Special Agent David

Paitsel was given at least $6,500 by his friend, Brian Bailey,

after providing Bailey with information about certain

residential tenants that Paitsel obtained from the FBI’s lawfully

authorized access to the non-public Thomson Reuters

information system known as CLEAR by representing that his

searches were for FBI law enforcement investigative purposes.

The primary issue in this appeal is whether Paitsel’s conduct

constituted bribery under 18 U.S.C. § 201(b)(2)(C), which

prohibits public officials from agreeing to accept valuable

compensation in exchange for performing an “official duty.”

We hold that, in this case, the Government proved beyond a

reasonable doubt that Paitsel’s conduct fell within his official

duties because he performed an act made possible only by both

(i) his official position in the FBI that gave him access to a

specialized FBI database, and (ii) his affirmative representation

while using that database, as required by law, that his conduct

was part of official FBI law enforcement investigative duties.

That satisfies the “official duty” prong even though Paitsel’s

conduct was technically outside the realm of his day-to-day

tasks or functions. Paitsel’s other challenges—a purported

instructional error and the sufficiency of the Government’s

quid pro quo evidence—are also rejected. For the reasons that

follow, we affirm Paitsel’s convictions and sentence.

I.

The District of Columbia has a number of tenants’ rights

laws, one of which is the Tenant Opportunity to Purchase Act

3

of 1980 (“TOPA”). TOPA provides that “[b]efore an owner of

a housing accommodation may sell the housing

accommodation or issue a notice to vacate for purposes of

demolition or discontinuance of housing use, the owner shall

give the tenant an opportunity to purchase the housing

accommodation at a price and terms that represent a bona fide

offer of sale.” D.C. CODE § 42-3404.02(a) (2001). In other

words, “[t]he right of a third party to purchase an

accommodation is conditional upon exercise of tenant

rights[,]” and can be blocked if tenants exercise their right to

purchase the property first. Id. § 42-3404.04. TOPA also gives

tenants wide latitude to “assign[] or sell[] th[e]se rights to any

party.” Id. § 42-3404.06. “Under TOPA, a tenant (or, as here,

the assignee of a tenant) can create a binding contract by

accepting the material terms of an owner’s offer of sale,”

preventing the original third party from purchasing the

property. van Leeuwen v. Blodnikar, 144 A.3d 565, 567 (D.C.

2016).

The D.C. Court of Appeals has described TOPA as

establishing “the unrestricted right of a tenant to assign his or

her rights.” Allman v. Snyder, 888 A.2d 1161, 1168 (D.C.

2005). This is true even if assignees are real estate developers

whose interests are not necessarily aligned with those of

tenants. Id.; see also Nawaz v. Bloom Residential, LLC, 308

A.3d 1215, 1226 (D.C. 2024) (TOPA permits an assignee to

“acquire[] these rights for the purpose of ensuring no one else

could exercise them—not for the purpose of purchasing the

property”).

On May 15, 2019, FBI Special Agent David Paitsel was

indicted by a grand jury for allegedly committing various

bribery offenses, including conspiracy to commit bribery, 18

U.S.C. § 371 (Count 3), and bribery in violation of Paitsel’s

“official duty,” 18 U.S.C. § 201(b)(2)(C) (Count 5). The

4

indictment alleged that Paitsel’s co-defendant, Brian Bailey,

bribed Paitsel and a local government official in exchange for

information that would allow Bailey to identify and contact

tenants whose residences were undergoing the TOPA process.

Bailey was also charged with conspiracy to commit bribery

under § 371, as well as bribery to induce Paitsel to violate his

lawful duty, 18 U.S.C. § 201(b)(1)(C).

On September 28, 2022, both Bailey and Paitsel proceeded

to jury trial. The evidence presented at trial established that

Bailey sought to identify tenants whose property was for sale

and thus had begun to proceed through the TOPA process. This

allowed Bailey to purchase tenants’ rights and, as assignee, sell

those rights to a third-party purchaser at a profit. Bailey paid a

local government employee in cash for unredacted TOPA

notices, which allowed Bailey to identify tenants by name.

Bailey then asked his good friend, Paitsel, to source the tenants’

information, which Bailey used to reach out to tenants to seek

assignment of their TOPA rights. Bailey later paid Paitsel

about $6,500.

Paitsel found the information Bailey sought by searching

for tenants’ names on a Thomson Reuters information system

called CLEAR. “CLEAR is a risk and fraud database that

provides public record and proprietary information on people,

businesses, phones, assets.” D.A. 483. It aggregates this data

from a variety of sources, including financial institutions such

as credit bureaus. CLEAR data includes personally-identifying

information (“PII”), such as birthdays, driver’s license

information, and Social Security numbers.

Federal laws, including the Gramm-Leach-Bliley Act

(“GLBA”), limit financial institutions’ disclosure of such

information, including PII. See Pub. L. No. 106-102, 113 Stat.

1338 (1999) (codified in part at 15 U.S.C. § 6801); 15 U.S.C.

5

§ 6801 (restricting release of so-called “nonpublic personal

information”); 16 C.F.R. § 313.3(n)(3)(i) (defining “nonpublic

information” to include PII). These restrictions apply not just

to financial institutions such as credit bureaus, but also to third

parties that obtain and aggregate information from financial

institutions, like Thomson Reuters. See 15 U.S.C. § 6802(c)

(“[A] nonaffiliated third party that receives from a financial

institution nonpublic personal information under this section

shall not . . . disclose such information . . . unless such

disclosure would be lawful if made directly to such other

person by the financial institution.”).

Thomson Reuters is one such example. Because

information contained in CLEAR is derived in part from

financial institutions, Thomson Reuters may only grant access

to the database for reasons permitted under federal law. See

Kidd v. Thomson Reuters Corp., 925 F.3d 99, 102 n.2 (2d Cir.

2019) ( “Thomson Reuters . . . acknowledges that it is

regulated by the Gramm-Leach-Bliley Act . . . .”). As such, the

FBI’s subscription to CLEAR only permits access to the

database for law enforcement investigations, which is one of

the authorized purposes under the GLBA for disclosure of the

information to the FBI. See 15 U.S.C. § 6802(e)(5); D.A.

485–86.1 Because the Department of Justice has law

enforcement and investigatory functions, its contract with

CLEAR supplies it with automatic access to sensitive

information beyond what might be available to corporate or

other authorized users.

1

Bailey also paid another individual to conduct what is known as

“skip tracing,” that is, trying to find people whose contact

information is missing or has changed. That individual used sources

including whitepages.com, the Internet, and Lexis-Nexis, but he did

not have access to CLEAR.

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To ensure compliance with federal law, Thomson Reuters

requires by contract that every user who logs into CLEAR,

including FBI agents, first affirm that they have a statutorily

authorized purpose for accessing sensitive data. After the user

selects a permissible use, CLEAR shows a warning screen,

which reads:

To maintain compliance with the privacy provisions

of the federal Gramm-Leach-Bliley Act and the

subsequent regulations adopted by the Federal Trade

Commission (GLB), a user must select only a single

purpose from the presented list. Misrepresenting your

access purpose is a violation of our subscriber

agreement and certain federal and state laws. Any use

of information maintained by West, a Thomson

Reuters business, other than for the selected

permissible purpose is grounds for account

termination and may be referred to the appropriate

governmental agency. Designated permissible

purpose changes can be made at any time after

logging in by clicking the refresh option on your

browser.

D.A. 490. The user must acknowledge receipt of this message

before they may search for information. If a user states that

they have no permitted use, their access to information is

restricted.

Even though the FBI “automatically get[s] a certain level

of data” due to the agency’s law enforcement functions, D.A.

493, agents still must select a permissible use each time they

search CLEAR. FBI agents are trained and instructed that they

may use CLEAR for official business only. Upon Bailey’s

request, Paitsel searched CLEAR for tenants’ information on

Bailey’s behalf around 30 times. For nearly every search, he

7

averred that he had a law enforcement purpose for accessing

the data. After Paitsel conducted the searches, he shared the

tenants’ information with Bailey.

On October 7, 2022, the jury unanimously found Paitsel

guilty of both conspiracy to commit bribery and bribery. The

District Court denied Paitsel’s motion for a judgment of

acquittal on February 21, 2023. On October 18, 2023, he was

sentenced to two years’ incarceration. This timely appeal

followed.

II.

We begin with Paitsel’s claim of instructional error, which

is easily dismissed. Paitsel argues that the District Court erred

when it instructed the jury that the third element of Count 5,

bribery under § 201(b)(2)(C), required a finding “that Mr.

Paitsel [acted] corruptly in return for being induced to violate

his official duty not to use government resources for

nonofficial business.” D.A. 1146. This instruction, Paitsel

contends, erroneously directed the jury to make a factual

finding that Paitsel had an official duty not to use CLEAR for

nongovernmental purposes. The argument continues that

because this instruction defined the offense of § 201(b)(2)(C)

bribery for the jury, it also infected the District Court’s

instructions as to Count 3, conspiracy to commit such bribery

under § 371, which required, per the District Court’s

instructions, “that an agreement existed between two or more

people to commit the crime of bribery.” D.A. 1135. The

Government argues that Paitsel has forfeited all but plain error

review of this claim and that, on the merits, Paitsel fails to clear

that high bar.

But Paitsel waived, rather than merely forfeited, any claim

of instructional error. “While we review for plain error when

a defendant has forfeited an issue through a failure to object,

8

we will not review at all when a defendant acts intentionally to

waive an issue.” United States v. Thomas, 999 F.3d 723, 732

(D.C. Cir. 2021). We refuse to review invited errors because

they raise prudential concerns about fairness—the rule is an

“equitable doctrine.” United States v. Long, 997 F.3d 342, 353

(D.C. Cir. 2021); see also Johnson v. United States, 318 U.S.

189, 201 (1943) (“We cannot permit an accused to elect to

pursue one course at the trial and then, when that has proved to

be unprofitable, to insist on appeal that the course which he

rejected at the trial be reopened to him.”). As such, we raise

invited error sua sponte “[b]ecause the rule is intended to

prevent improper use of judicial machinery” and is thus

“invoked by a court at its discretion.” Cf. New Hampshire v.

Maine, 532 U.S. 742, 750 (2001) (internal quotation marks and

citations omitted) (discussing judicial estoppel).

When a defendant deliberately induces the error below,

such “invited error” constitutes waiver. “A party who

challenges a jury instruction on appeal after having proposed

the instruction’s language commits ‘a textbook case of invited

error.’” United States v. Benton, 98 F.4th 1119, 1130 (D.C.

Cir. 2024) (quoting United States v. Maradiaga, 987 F.3d

1315, 1322 (11th Cir. 2021)). Here, Paitsel requested the very

instruction he now challenges. See Proposed Jury Instructions,

United States v. Paitsel, No. 19-cr-156 (CKK) (D.D.C. Aug. 6,

2021), ECF No. 111, at 11, 17. The District Court adopted that

instruction verbatim, D.A. 1146, and Paitsel did not object.

Paitsel invited the instructional error of which he now

complains, and has thus waived this claim.

III.

Paitsel next disputes that the Government presented

constitutionally sufficient evidence to allow a jury to convict

him of bribery under § 201(b)(2)(C). When considering an

9

attack on the sufficiency of the evidence presented, we ask

whether, “viewing the evidence in the light most favorable to

the government, . . . any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

United States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir.

2007) (cleaned up). Our review is highly deferential as we

must “give full play to the right of the jury to determine

credibility, weigh the evidence[,] and draw justifiable

inferences of fact.” Id. Paitsel argues both that (1) insufficient

evidence of the requisite quid pro quo was submitted to the

jury, and (2) the Government failed to present sufficient

evidence that he had an “official duty” not to use CLEAR for

nongovernmental purposes. Both challenges ultimately fail to

persuade us that reversal of Paitsel’s convictions is warranted.

A.

Notwithstanding Paitsel’s contrary arguments, sufficient

evidence of a quid pro quo agreement was presented.2 Bribery

2

Although the Government argues that this challenge is subject to

plain-error review, it was adequately preserved. In his motion below,

Paitsel argued: “Even viewing the evidence in the light most

favorable to the government, the evidence presented does not support

a conviction for Bribery. The government’s evidence of

compensation, which at best may be characterized as a ‘thank you,’

do[es] not meet the elements required to obtain conviction on Count

5.” S.A. 81. The District Court’s ruling on the motion acknowledged

that the relevant bribery statute requires “quid pro quo corruption,

i.e., a specific intent to exchange a thing of value for an action in

violation of a lawful duty.” United States v. Paitsel, No. 19-cr-156

(CKK), 2023 WL 2139366, at *4 (D.D.C. Feb. 21, 2023) (cleaned

up). It then concluded that “[t]he evidence is therefore more than

sufficient to establish corrupt intent to accept payments in exchange

for actions in violation of an official duty,” id. (emphasis added).

Paitsel thus raised—and the District Court decided—whether the

10

generally requires that “payments [are] made or agreed to

before an official act in order to influence the official with

respect to that future official act.” Snyder v. United States, 603

U.S. 1, 5 (2024). This distinguishes bribes from “gratuities,”

which involve after-the-fact payments treated differently by

law. See id. 18 U.S.C. § 201(b) requires that a defendant act

“corruptly,” which mandates proof “that the official have a

corrupt state of mind and accept (or agree to accept) the

payment intending to be influenced in the official act.” Snyder,

603 U.S. at 11; see also United States v. Sun-Diamond Growers

of California, 526 U.S. 398, 404–05 (1999) (“[F]or bribery

there must be a quid pro quo—a specific intent to give or

receive something of value in exchange for an official act.”).

The parties’ dispute boils down to whether the record

supported the jury’s finding that prior to Paitsel’s conduct—

searching CLEAR for tenants’ information—he agreed to

accept payment from Bailey in exchange for that information.

Paitsel points out that the payments themselves postdated the

conduct, and the Government replies that the timing of

payments is irrelevant if the promise to pay predated the

violation of an official duty. Paitsel agrees, but points to the

absence of direct evidence that he formed such an agreement

with Bailey before running the relevant CLEAR searches as

undermining the jury’s contrary finding. But the Supreme

Court has made clear that “[t]he agreement need not be explicit,

and the public official need not specify the means that he will

use to perform his end of the bargain.” McDonnell v. United

States, 579 U.S. 550, 572 (2016). “A jury could, for example,

Government presented sufficient evidence to allow a reasonable jury

to find the requisite quid pro quo. See Blackmon-Malloy v. U.S.

Capitol Police Bd., 575 F.3d 699, 707–08 (D.C. Cir. 2009) (“Review

here is thus appropriate because the district court ‘passed upon’ the

in-person issue appellants now present to this court.”) (quoting

United States v. Williams, 504 U.S. 36, 41 (1992)).

11

conclude that an agreement was reached if the evidence shows

that the public official received a thing of value knowing that

it was given with the expectation that the official would

perform an ‘official act’ in return.” Id.

Here, there was ample evidence from which a reasonable

jury could have made a finding of quid pro quo beyond a

reasonable doubt. Bailey’s requests for information, and

Paitsel’s responses, spanned from February 2017 to May 2018.

During this time, their communications repeatedly connected

Paitsel’s CLEAR searches to mutual monetary benefit. For

instance, the jury heard evidence that in April 2017, Bailey

wrote to Paitsel via email to discuss potential ways they could

“make some money together.” D.A. 523. In the same message,

Bailey wrote: “The TOPA stuff is doing okay. Obviously, a

lot depends on tracking people down. Even when I get to them

there’s no guarantee, but it only takes one or two to make it

worthwhile.” Id. He then provided Paitsel with the name of

the tenant, and Paitsel responded with that individual’s

information.

In May 2017, Bailey requested another tenant’s

information from CLEAR, and Paitsel sent it the same day.

The following day, Bailey emailed Paitsel to let him know that

he was able to contact the tenant. He wrote, “If I get paid off

of it, I’m going to give you 5K.” D.A. 591. In the same

message, he asked for further information about another tenant.

Paitsel complied and sent back the information the same day.

Months later, after Bailey made $40,000 from re-assigning that

tenant’s interest, he emailed Paitsel: “David, I will have the

money tomorrow from the smaller deal. Do you want to meet

this weekend so I can get it to you?” D.A. 593–94. Again in

the same email, he flagged another tenant for Paitsel to search.

As promised, Bailey withdrew $4,100 the next day and gave

$2,500 to Paitsel.

12

In June 2017, Bailey emailed Paitsel to update him that he

had successfully purchased the rights of a tenant whose

information Paitsel had obtained on CLEAR. He wrote, “Hey

bro. I owe you 5K. I found [the tenant] . . . . He assigned his

rights over to me.” D.A. 602. He then again asked for two new

tenants’ information. A few months later, Bailey provided

Paitsel an update on this tenant, texting that the building was

foreclosing and if he successfully sold his assigned rights, he

would “give [Paitsel] 5K,” as promised. D.A. 605. In

December 2017, he confirmed to Paitsel via email: “Looks like

we will get our money for 3021 15th Street Northwest between

December 7th and the 12th. I owe you 5K on that.” Id. Bailey

further stated that another building “hopefully will close by the

beginning of the year,” and “[t]hat one will give you 1500 to

2500.” Id. To that email Bailey attached three notices with

tenant information and asked if Paitsel “can get anything on

them.” Id. Paitsel completed Bailey’s request the same day by

searching in CLEAR and responding. Bailey ultimately wrote

Paitsel a check for $6,500 in January 2018.

Under our precedent, this evidence more than sufficed. In

United States v. Sutton, we considered a § 201(b) conviction in

a case where there was “no direct evidence of [the defendant’s]

intent at the time of the transfer” of money as payment, but

where “there was considerable circumstantial evidence from

which a jury could infer [the defendant’s] knowledge that the

money would be used to bribe government employees.” 801

F.2d 1346, 1358 (D.C. Cir. 1986). While all parties involved

“testified that they had no knowledge of illegality at the time

of payment,” we found significant in Sutton that the timing of

the payment was “the same day” that defendant engaged in the

culpable conduct. Id. at 1359. We further explained that

irrespective of whether culpable conduct predated or postdated

the money transfer, “either resolution allow[ed] a reasonable

inference of [the defendant’s] criminal intent,” because under

13

both fact patterns, “[t]he central theme . . . is that the [conduct]

directly corresponded to the receipt of money.” Id. (emphasis

added).

Similarly, in a conspiracy to commit bribery case

involving a conviction under 18 U.S.C. § 371, we ruled that

indirect evidence was “even more compelling evidence of an

agreement” than the direct evidence presented. United States

v. Gatling, 96 F.3d 1511, 1519 (D.C. Cir. 1996). There,

third-party testimony established that one defendant (Jackson)

connected third parties with the other defendant (Gatling), who

provided them with housing subsidies for a $500 fee.

Specifically, “[o]ne witness testified that she gave her $500 to

Jackson, who then put the money in Gatling’s pocket.” Id. We

held that “[t]he jury could legitimately have inferred an

agreement to commit bribery between Gatling and Jackson

from the fact that Jackson spread the word that section 8

subsidies were for sale and repeatedly brought individuals

seeking subsidies to Gatling.” Id.; see also United States v.

Dean, 55 F.3d 640, 658 (D.C. Cir. 1995) (holding sufficient

evidence supported § 371 conviction when jury could find a

public official accepted money and “never paid it back,” and

the briber “benefited from [the official’s] efforts,” thus

permitting the jury to find that the official “accepted the money

in exchange for her performance of ‘official acts’”).

The nexus between Bailey’s requests for information and

his promise and eventual delivery of money represents conduct

that “directly correspond[s] to the receipt of money.” Sutton,

801 F.2d at 1359. Bailey referred to the money he paid Paitsel

as “from the smaller deal,” D.A. 594, and as being “owe[d]”

due to Paitsel’s provision of information, D.A. 605. He directly

tied requests for information to cash, writing, “[t]hat one will

give you 1500 to 2500.” D.A. 605. And Paitsel, having

received and responded to these communications, continued to

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supply Bailey with the sought-after information. After Bailey

wrote Paitsel a check for $6,500, which Paitsel accepted,

Paitsel continued to search CLEAR on Bailey’s behalf. Paitsel

“accepted the money” Bailey gave him and Bailey clearly

“benefitted from [Paitsel’s] efforts.” Dean, 55 F.3d at 658.

The jury could, consistent with our precedent, reasonably infer

from these facts that Paitsel and Bailey formed an agreement

wherein Bailey promised Paitsel money in exchange for

Paitsel’s CLEAR research on his behalf.3

Paitsel nevertheless persists that “the evidence showed

only that Bailey had asked Paitsel to help him find contact

information for tenants and then, of his own accord, had

rewarded Paitsel months later with payment after-the-fact

when information that Paitsel had procured ultimately helped

Bailey turn a profit.” Appellant’s Br. 34. But this reading of

the record is only plausible as to Paitsel’s initial CLEAR

searches between February and April 2017, which preceded

payment. But cf. Appellee’s Br. 33–34 (arguing that even for

these early searches, “[n]othing in the evidence precluded the

3

This comports with out-of-circuit caselaw. See, e.g., United States

v. Cianci, 378 F.3d 71, 98 (1st Cir. 2004) (reasoning that based on

the “juxtaposition” of two comments—one regarding conduct and

one regarding payment—the jury could reasonably infer that the

money paid was to serve as a bribe in return for official acts); United

States v. Lanci, 669 F.2d 391, 393 (6th Cir. 1982) (“The contention

that the evidence was insufficient to support conviction is based on

the defense that the payments to the FBI employee were not made in

return for her agreement to provide, and actually providing,

confidential information[,]” but the jury “could infer that the

payments were made for the stolen materials.”); United States v.

Pacchioli, 718 F.3d 1294, 1302–03 (11th Cir. 2013) (“jury could

fairly determine” that defendant “expected to win the[] favor” of

individuals based on “remarkable coincidence” of defendant’s

provision of valuable free goods and services).

15

jury from inferring that Paitsel obtained the information on the

understanding that Bailey would pay him for it—particularly

given their long-term friendship.”).

And Paitsel offers no response at all on reply to the

Government’s rejoinder that “Bailey paid Paitsel on at least

two occasions for providing tenant information which had

helped Bailey contact and purchase tenants’ TOPA rights.”

Appellee’s Br. 35. The District Court instructed the jury that

the Government did not have to correlate each of Bailey’s

payments to a specific violation of Paitsel’s duties, and instead

could “show a course of conduct, that is, a pattern” of such

behavior. D.A. 1147. Paitsel has never challenged that

instruction, nor does he explain why the various unrebutted

instances involving a quid pro quo do not suffice to “show a

course of conduct,” even if not every CLEAR search was

correlated to a discrete subsequent payment.

In light of the robust evidence, we conclude that the

Government presented sufficient proof from which a

reasonable jury could find beyond a reasonable doubt that

Bailey promised Paitsel a bribe in exchange for Paitsel’s

research of tenants on CLEAR.

B.

Paitsel’s remaining sufficiency-of-the-evidence claim is

also unavailing, though it presents a statutory interpretation

question of first impression. Recall that Paitsel was convicted

of so-called “official duty” bribery and conspiracy to commit

that offense, which forbids public officials from “receiv[ing],

accept[ing], or agree[ing] to receive or accept anything of

value . . . in return for . . . being induced to do or omit to do any

act in violation of the official duty of such official or person.”

18 U.S.C. § 201(b)(2)(C). Paitsel argues that his convictions

are constitutionally infirm because the jury was not presented

16

with sufficient evidence that he was bribed to violate an

“official duty.” Specifically, he contends that the Government

failed to put forward any evidence establishing that as an FBI

agent, Paitsel had an official duty not to use CLEAR for the

purposes that he did. In particular, Paitsel challenges the

Government’s invocation of “general ethical obligations”

imposed on all Department of Justice employees, Appellant’s

Br. 38, arguing in favor of a narrower definition of “official

duty” limited to his job functions. The Government counters

that its evidence, including evidence that Paitsel was subject to

ethics regulations that govern all federal employees’ conduct,

sufficed.4

“To allow a conviction to stand where the defendant’s

conduct ‘fails to come within the statutory definition of the

4

The Government again argues that Paitsel failed to raise this

argument below and it should be subjected to plain-error review. We

again disagree. The operative question is whether Paitsel “alert[ed]

the district court to the specific arguments he advances on appeal.”

United States v. Little, 123 F.4th 1360, 1368 (D.C. Cir. 2024). In his

motion before the District Court, Paitsel challenged the sufficiency

of the evidence on various grounds. He argued that § 201 “is not

intended to address the issues litigated in this trial, where Mr. Paitsel

is alleged to have misused Government resources.” S.A. 78 (cleaned

up). He cites to Valdez v. United States, 475 F.3d 1319, 1324 (D.C.

Cir. 2007) (en banc), for the proposition that Ҥ 201 is not about

officials’ moonlighting, or their misuse of government resources,”

which he argued was relevant to “what constitutes an official act,”

S.A. 78 n.5. And the District Court addressed this argument, holding

that “[t]here was substantial evidence establishing the Paitsel

understood that he was improperly accessing CLEAR in violation of

a duty to use it only for FBI purposes in exchange for money

payments,” Paitsel, 2023 WL 2139366, at *4, and relying on

evidence “that Paitsel was required to select an official reason for

using CLEAR when he accessed the system” to support its ruling, id.

This sufficed to preserve the issue.

17

crime,’ or despite insufficient evidence to support it, would

violate the Due Process Clause.” United States v. Hillie, 14

F.4th 677, 683 (D.C. Cir. 2021) (quoting Griffin v. United

States, 502 U.S. 46, 59 (1991)). As before, we “view[] the

evidence in the light most favorable to the government,

drawing all reasonable inferences in its favor. Our inquiry is

limited to the question of whether ‘any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Dingle, 114 F.3d 307, 310

(D.C. Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)) (citation omitted). “[O]ur limited determination

on sufficiency review does not rest on how the jury was

instructed, but rather on how a properly instructed jury would

assess the evidence.” Hillie, 14 F.4th at 682 (cleaned up). The

first step to our review is thus to determine the scope of the

statutory term “official duty” under § 201(b)(2)(C).

1.

Although 18 U.S.C. § 201 was enacted in 1962, the federal

bribery statute traces its roots back over a century prior. In

1853, Congress enacted a predecessor statute that, inter alia,

forbade offering valuable collateral to a public official with the

goal of influencing any matter “before him in his official

capacity, or in his place of trust or profit.” Act of Feb. 26, 1853,

Sess. II, ch. 81 § 6, 10 Stat. 170, 171. By 1901, the statute

expanded criminal liability to those who induced an official “to

do or omit to do any act in violation of his lawful duty.” 70

Rev. Stat. § 5451, Comp. Stat. of the U.S. 1901. The Supreme

Court characterized these bribery provisions as proscribing

“bribing an officer of the United States to do an act in violation

of his official duty.” Benson v. Henkel, 198 U.S. 1, 8 (1905).

And as early as 1905, individuals were prosecuted under the

bribery scheme for violating duties “to preserve and keep for

the exclusive use of the” Government confidential records

18

relating to investigations. Id. at 9; see also Haas v. Henkel, 216

U.S. 462, 477 (1910) (reviewing jurisdictional basis for

indictment, which alleged that defendants sought to obtain

confidential government reports from a public official, who

violated an official duty in disclosing them).

In 1914, the Supreme Court decided United States v.

Birdsall, 233 U.S. 223, 231 (1914), where it interpreted § 201’s

predecessor statute, a law targeting “official[s] accepting

bribe[s],” Act of Mar. 4, 1909, ch. 821 § 117, 35 Stat. 1109,

which was later codified at 18 U.S.C. § 207. The Court held

that official action need not “be prescribed by statute,” but

could be “governed by a lawful requirement of the Department

under whose authority the officer was acting,” and it was

unnecessary “that the requirement . . . be prescribed by a

written rule or regulation,” but could be defined with reference

to “an established usage which constituted the common law of

the Department and fixed the duties of those engaged in its

activities.” Id. at 230–31 (“In numerous instances, duties not

completely defined by written rules are clearly established by

settled practice, and action taken in the course of their

performance must be regarded as within the provisions of the

above-mentioned statutes against bribery.”); accord United

States v. Macdaniel, 32 U.S. 1, 14–15 (1833) (recognizing that

“usages have been established in every department of the

government, which have become a kind of common law, and

regulate the rights and duties of those who act within their

respective limits”).

We too construed § 201’s predecessor statute broadly. In

Thomson v. United States, we articulated a mandate that some

official duty exist, such that a defendant could not be convicted

of bribing an individual who was not a public official. 37 App.

D.C. 461, 466–67 (D.C. Cir. 1911). We reasoned that when

“Congress used the term ‘official function,’ it had reference to

19

acts official in character, something within the legal duty of the

person performing them[,]” as opposed to those “acts or duties

of an important nature . . . legally [e]ntrusted to persons not

officers at all.” Id. at 467. As to “function,” we relied upon its

ordinary meaning, which included, among other things, “the

fulfilment or discharge of a set duty or requirement[,] the

exercise of a faculty or office,” and “that which one is bound

or which is one’s business to do.” Id. For instance, in Fall v.

United States, we affirmed the conviction of Secretary of the

Interior Albert B. Fall for his role in the Teapot Dome scandal.

49 F.2d 506 (D.C. Cir.), cert. denied, 283 U.S. 867 (1931).

There, we adopted the New York Court of Appeals definition,

“giv[ing] to the statutory definition of bribery a construction

broad enough to cover cases where a public officer has

accepted a bribe to act corruptly in a matter to which he bears

some official relation, though the act itself may be technically

beyond his official powers or duties.” Id. at 509–10 (emphasis

added). As we summarized in an official immunity case:

It is not necessary—in order that acts may be done

within the scope of official authority—that they should

be prescribed by statute or even that they should be

specifically directed or requested by a superior officer.

It is sufficient if they are done by an officer in relation

to matters committed by law to his control or

supervision, or that they have more or less connection

with the general matters committed by law to his

control or supervision, or that they are governed by a

lawful requirement of the department under whose

authority the officer is acting.

Cooper v. O’Connor, 99 F.2d 135, 139 (D.C. Cir. 1938)

(internal quotation marks and citations omitted).

20

State-law cases echo this formulation of the official duty

requirement. See, e.g., People v. Markham, 30 P. 620, 621

(Cal. 1883) (affirming conviction where violation of official

duty was “the duty of a police officer to arrest, with or without

warrant, according to circumstances, every person who

violates” the law, without reference to the defendant police

officer’s particular job functions); Commonwealth v. Avery, 18

N.E.2d 353, 354 (Mass. 1938) (“[W]here as here he acts under

color of his office we think that a sufficient relation exists.”);

State v. Potts, 43 N.W. 534, 534 (Iowa 1889) (penalizing “any

agreement by which [the officer] undertook to thwart the ends

of justice by using his official position”); People v. Clougher,

158 N.E. 38, 40 (N.Y. 1927) (forbidding “the performance of

or omission to perform any act whatsoever concerning which

any discretion may be exercised by virtue of his actual relation

to some official matter”); State v. Nadeau, 105 A.2d 194, 198

(R.I. 1954) (construing statute as restricting “the prohibited

actions to those performed by a servant in relation to his official

capacity with the city”). But see State v. Butler, 77 S.W. 560,

572 (Mo. 1903) (“[T]here must be a law in force, at the time of

the attempted bribery, which imposes upon him the duty of

acting in his official capacity, upon a subject-matter which may

be brought before him.”).

Many go further to hold that a defendant officer need not

be authorized to perform an official duty, since his commission

or intent to commit an unauthorized act in exchange for a bribe

is even more culpable conduct. See, e.g., State v. Campbell, 85

P. 784, 795 (Kan. 1906) (collecting cases); State v. Ellis, 33

N.J.L. 102, 103–06 (N.J. 1868); People v. McGarry, 99 N.W.

147, 149 (Mich. 1904); State v. Hendricks, 186 P.2d 943, 947

(Ariz. 1947) (“If he acts in his official capacity—and by this

term is meant the doing of such acts as properly belong to the

office and are intended by the officer to be official—the offense

is complete. The validity or invalidity of the act to be done, or

21

whether the officer or the body in question had or had not

jurisdiction, is generally immaterial.”). For example, the

Supreme Court of Washington affirmed a police officer’s state

bribery conviction and rejected the defendant’s challenge that

the Government failed to prove that he violated an official duty.

State v. Cooney, 161 P.2d 442, 445 (Wash. 1945). There, the

officer was convicted of accepting a diamond ring in exchange

for releasing a prisoner from custody. The court upheld the

conviction, reasoning that “[w]hether or not he did something

which, as a police officer, technically he had no right to do is

immaterial so long as the act was not entirely beyond his

official duties as such officer.” Id. Because the officer “was

acting officially and because of his authority as a police

officer,” his actions went beyond his authority and “d[id] not

exonerate him from prosecution under the statute against

bribery.” Id.; see also 5 J. Breckinridge Robertson, Bribery, in

CYCLOPEDIA OF L. & PROC. 1041 (William Mack & Howard P.

Nash eds., 1901–1912) [hereinafter CYCLOPEDIA OF L. &

PROC.] (“[I]t has been held immaterial whether the officer had

or had not jurisdiction . . . .”) (defining bribery).

Prior to § 201’s enactment, then, the wealth of federal and

state authority supported the principle that “[a] bribery may be

committed even though the officer in question has no particular

duty with respect to the action desired, so long as the action

pertains to subject matter over which he has a general duty.” 3

WHARTON’S CRIMINAL LAW § 43:9 (16th ed. 2021). This

construction further undermines Paitsel’s contention that an

“official duty” is circumscribed to a particular law enforcement

officer’s day-to-day functions and weakens his argument that

using CLEAR was not part of his job responsibilities. See

Carter v. United States, 530 U.S. 255, 267 n.5 (2000) (noting

that if “Congress [had] simply punished ‘robbery’ or ‘larceny’

as some States have done,” it would have had the effect of

“leaving the definition of these terms to the common law”); see

22

also Morissette v. United States, 342 U.S. 246, 263 (1952)

(“[W]here Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word in the body of

learning from which it was taken and the meaning its use will

convey to the judicial mind unless otherwise instructed.”);

LAFAVE, 1 SUBST. CRIM. L. § 2.2(d) (3d ed. Oct. 2024 update)

(“[C]ourts interpret common law terminology in statutes

according to its common law meaning rather than its everyday

meaning, with the result that language which might at first

blush seem ambiguous or vague takes on a quite definite

meaning.” (footnote omitted)); Microsoft Corp. v. I4I Ltd.

P’ship, 564 U.S. 91, 101 (2011) (“[W]here Congress uses a

common-law term in a statute, we assume the term comes with

a common law meaning, absent anything pointing another

way.” (citation modified)).

It was against this backdrop that Congress reorganized the

bribery statute in 1962. See Act of Oct. 23, 1962, Pub. L. No.

87-849, § 1(a), 76 Stat. 1119. This history is crucial because,

as we have recognized, “[w]hen Congress next reorganized the

bribery laws in 1962, it was well aware of previous bribery

statutes and court interpretations of those statutes.” United

States v. Neville, 82 F.3d 1101, 1105 (D.C. Cir. 1996).

“Committee reports from both Houses of Congress emphasized

that the new bribery laws made ‘no significant changes of

substance’ and ‘would not restrict the broad scope of the

present bribery statutes as construed by the courts.’” Dixson v.

United States, 465 U.S. 482, 494 (1984) (quoting S. REP. NO.

87-2213, at 4 (1962); citing H.R. REP. NO. 87-748 (1961)).

The 1962 statute defined three different bribery offenses:

bribery in exchange for (1) an “official act,” (2) committing

fraud, or (3) violating an “official duty.” See § 201(c), 76 Stat.

23

at 1120 (codified at 18 U.S.C. § 201(c) (1964)). Today, 18

U.S.C. § 201(b)(2) is, in relevant part, nearly identical,

exposing any public official to criminal liability who, “directly

or indirectly, corruptly demands, seeks, receives, accepts, or

agrees to receive or accept anything of value personally or for

any other person or entity, in return for” (A) performing “any

official act,” (B) committing fraud, or (C) “being induced to do

or omit to do any act in violation of the official duty of such

official or person.”

In Valdes v. United States, our en banc Court construed

“official act” under § 201(b) narrowly, rejecting the

Government’s bid to construe that element “to encompass

essentially any action which implicates the duties and powers

of a public official.” 475 F.3d 1319, 1322 (D.C. Cir. 2007) (en

banc). We disagreed with the Government’s characterization

of Birdsall as standing “for the proposition that every action

within the range of official duties automatically satisfies

§ 201’s definition,” and clarified that “it merely made clear the

coverage of activities performed as a matter of custom.” Id. at

1323. Instead, we looked to 18 U.S.C. § 201(a)(3), which the

Supreme Court construed in Sun-Diamond Growers, 526 U.S.

at 404–414, and which defines “official act” as “any decision

or action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may

by law be brought before any public official, in such official’s

official capacity, or in such official’s place of trust or profit.”

Id. We reasoned that the Court in Sun-Diamond Growers

applied an “interpretive gloss” to “reject the government’s

theory that” the official act provision “covers any action taken

in an official capacity.” Id. Taken together, Valdes and

Sun-Diamond Growers tell us that when Congress restructured

the bribery statute, it carved out official act bribery as a

narrower offense than the singular bribery offense that

preceded § 201. Contrary to Paitsel’s insistence otherwise, the

24

two cases view the bribery statute as a whole in a way that

favors the government’s argument here.

The Valdes Court reasoned that official duty bribery

encompasses more conduct than official act bribery. There, the

defendant was a police officer charged with official act bribery

for “searching several police databases to supply otherwise

publicly available information to” an FBI informant posing as

a private party. Id. at 1320. The facts there were, in all relevant

aspects, nearly identical to those at issue here. We reversed the

defendant’s conviction, however, because “an information

disclosure is not in itself a decision or action on a question,

matter, cause, suit, proceeding or controversy” that “may by

law be brought before a public official” and so is not an official

act. Id. at 1330 (citation modified). Paitsel and the dissent

make much of the Valdes Court’s statement that “§ 201 is not

about officials’ moonlighting, or their misuse of government

resources[,]” id. at 1324, but we indicated that the decision

“plainly continue[d] to allow bribery prosecutions when, for

example, someone offers something of value to induce an

official to provide information in violation of official duty,” id.

at 1327 (emphasis added). It was clear to the en banc Court,

then, that the provision of information to a civilian was the sort

of conduct that could constitute a violation of one’s official

duty, even if it would not comprise an official act.

This intuition squares with our precedent construing

§ 201’s predecessor statute, see Fall, 49 F.2d at 509–10

(encompassing “cases where a public officer has accepted a

bribe to act corruptly in a matter to which he bears some official

relation, though the act itself may be technically beyond his

official powers or duties”), as well as the construction of the

term “official duty” in other federal bribery statutes. See

United States v. Carson, 464 F.2d 424, 433 (2d Cir. 1972)

(“There is no doubt that federal bribery statutes have been

25

construed to cover any situation in which the advice or

recommendation of a Government employee would be

influential, irrespective of the employee’s specific authority (or

lack of same) to make a binding decision.”) (collecting cases).

For instance, the Meat Inspection Act, enacted in 1907 and

amended in 1967, proscribes the receipt of valuable collateral

by federal employees with meat inspection responsibilities that

was “given with intent to influence his official action” or to

influence “the discharge of any duty” provided for in the Act.

21 U.S.C. § 622. We distinguished the Meat Inspection Act’s

broad conception of “duty” from § 201’s “official act” offense

discussed in Sun-Diamond Growers, reasoning that “the Act

does not place any restrictive definitional gloss upon what

constitutes ‘the discharge of any duty under the Act.’” United

States v. Schaffer, 183 F.3d 833, 846 (D.C. Cir. 1999).

Applying an ordinary-meaning analysis, we recognized that

generalized statutory rulemaking authority “lacks the

particularized focus of the term ‘official act,’” and that “[t]hese

duties extend beyond the mere development and promulgation

of food safety regulations, and encompass an ongoing

obligation to ensure enforcement in conformity therewith,”

such that “one could unlawfully attempt to influence the

Secretary in the discharge of his broad-based duties without

identifying any particular policy then at the regulatory fore.”

Id.; accord United States v. Espy, 145 F.3d 1369, 1371–72

(D.C. Cir. 1998) (same).

Moreover, the United States Code is replete with statutes

that employ some variation of “official duty.” For instance, 18

U.S.C. § 111(a)(1) has also been construed to require a nexus

with the officer’s generalized responsibilities, but not more.

That statute forbids assaulting a federal officer “while engaged

in or on account of the performance of official duties.” Id.

Courts have recognized that “[t]he parameters of the statutory

26

requirement that a federal official covered by the act must be

engaged in the performance of his official duties are inherently

fluid.” United States v. Boone, 738 F.2d 763, 765 (6th Cir.

1984) (per curiam). Although “[t]here is no bright-line test to

define performance of official duties,” United States v. Hoffer,

869 F.2d 123, 125 (2d Cir. 1989) (cleaned up), several Circuits

have adopted the framework that “[e]ngaged in performance of

official duties is simply acting within the scope of what the

agent is employed to do. The test is whether the agent is acting

within that compass or is engaging in a personal frolic of his

own.” United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.),

cert. denied, 338 U.S. 917 (1967) (cleaned up); see also United

States v. Reid, 517 F.2d 953, 964 (2d Cir. 1975) (“It was

thinking in terms of what the officer ought to do because of

being an officer.”).

In construing “official duties” under § 111(a)(1), Courts of

Appeal have cautioned against “occupational pigeonholing.”

United States v. Green, 927 F.2d 1005, 1007 (7th Cir.), cert.

denied, 502 U.S. 847 (1991); see United States v. Street, 66

F.3d 969, 978 (8th Cir. 1995) (“[N]or is the touchstone whether

the officer is performing a function covered by his job

description.”) (citation omitted). In United States v. Green, the

Seventh Circuit rejected the argument that the assaulted

officers were not performing official duties when they

dispersed a fight, merely because they “were prison food

service workers rather than guards,” since “the sweep of the

phrase ‘official duties’” extended beyond one’s job functions

to encompass broader duties shared by all prison employees,

including “safekeeping, protection, and discipline.” 927 F.2d

at 1007–08. And in United States v. Kelley, the Fifth Circuit

rejected a defendant’s argument that an officer was not

performing “official duties” when the officer stopped at the

scene of a car accident, even though she was not a traffic officer

but rather on her way to investigate credit card fraud, and

27

therefore defined “official duties” with reference to the

officer’s law enforcement role, rather than her particular job

functions. 850 F.2d 212, 214–15 (5th Cir. 1988). Every Court

of Appeals to address the issue has uniformly held that

§ 111(a)(1)’s “official duties” requirement extends beyond

one’s particular job responsibilities. Cf. United States v.

Hansen, 599 U.S. 762, 772 (2023) (interpreting comparable

terms in other provisions of “the federal criminal code”).

Considering our precedent, comparable state-law

formulations of official duties, and the complimentary

construction of this term in other statutes, an “official duty”

within the meaning of § 201(b)(2)(C) could seemingly

encompass an obligation or responsibility beyond one’s

day-to-day tasks or functions. And that test would certainly

cover Paitsel’s conduct. But we need not definitively adopt

that test because, in this case, it suffices for Paitsel’s conduct

to fall within his official duties that he performed an act made

possible only by both (i) his official position in the FBI that

gave him access to a specialized FBI database, and (ii) his

affirmative representation while using that database, as

required by law, that his conduct was part of official FBI law

enforcement investigative duties.5

2.

Applying this definition, Paitsel’s sufficiency challenge

fails. It falters even if we assume without deciding that the

5

United States v. Fernandez, No. 19-15044, 2022 WL 3581793 (11th

Cir. Aug. 22, 2022) (per curiam unpublished op.), is not to the

contrary. There, the Eleventh Circuit stated that “[a]lthough the term

‘official duty’ is not statutorily defined, its ordinary meaning

encompasses a public official’s job responsibilities as dictated by

governing statutes, rules, and regulations.” Id. at *4. But this

28

Government may not satisfy its burden with ethics regulations

applicable to all federal government employees, as Paitsel

insists. He has not shown that no rational trier of fact could

find that, based on the evidence presented, Paitsel violated an

obligation relating to, and required by, his position as an FBI

agent.

The CLEAR permissible-use warning and related

testimony were sufficient to allow a jury to find that Paitsel had

an official duty to comply with the CLEAR permissible uses,

which included using the system for only official business. The

admission of the warning screen and testimony together

supplied enough evidence from which a reasonable factfinder

could conclude beyond a reasonable doubt that Paitsel, in his

role as an FBI Special Agent, had an official duty to comply

with the terms and conditions of using the CLEAR system,

which were required by federal statute. See supra Part I.

Specifically, the Government presented evidence that legal

restrictions on the dissemination of PII, specifically the GLBA,

require Thomson Reuters to place “restrictions on how that

data can be used,” including that users must identify a

“permissible purpose[] in order to be a client of CLEAR.” D.A.

485.6 The FBI’s version of CLEAR contains a greater level of

statement was dictum. In Fernandez, the Eleventh Circuit affirmed

because the appeal solely challenged the District Court’s refusal to

instruct the jury on “official duty” using the statutory definition of

“official act,” as those terms are clearly distinct. Id. It thus had no

occasion to define “official duty,” because it merely needed to affirm

the District Court’s rejection of defendant’s proposed instruction.

6

The dissent accuses us of rewriting the indictment to “charg[e] an

offense that was never alleged” and substituting ourselves for “a jury

who was not required to, and did not, make any findings about

Paitsel’s compliance with the Gramm-Leach-Bliley Act.”

29

access to data because the FBI is a law enforcement agency,

and government investigations are a statutorily permitted use

of such data. D.A. 483–87. As part of his role, Paitsel was

trained that CLEAR is used for official business only. Paitsel’s

ability to access CLEAR was inextricably tethered to and

dependent on his position as an FBI agent, and his affirmative

representations that searches performed were part of his law

enforcement investigation work. That rendered it part of his

official duty, just as, as defense counsel conceded at argument,

“any FBI agent who misuses his badge for private purposes”

could be found to have violated his official duty. Oral Arg.

35:55–37:32.

This is true even though it is undisputed that Paitsel did

not use CLEAR as part of his job description. That is because

even if the database was not part of his day-to-day functions,

Dissenting Op. 7. But the indictment alleged that CLEAR’s

permissible use screen existed “[t]o maintain compliance with the

privacy provisions of the federal Gramm-Leach-Bliley Act,” D.A.

71; evidence about the GLBA requirements was presented to the jury

without objection; and the Government argued to the jury in closing

that CLEAR “can be used only for specific purposes” under federal

law, including the GLBA, D.A. 1012, such that Paitsel “lied every

single time” he accessed CLEAR and affirmed that “he was logging

into CLEAR for use complying with federal, state, or local laws,”

D.A. 1012–13. The Government further argued (over no objection)

that the jury should find that Paitsel violated his official duty

“because he lied every time he ran a search in CLEAR, which he had

special access to because he was an FBI agent.” D.A. 1106.

Furthermore, Paitsel’s argument to the jury, as well as his briefing to

us, did not contest that his misrepresentation that he sought to access

CLEAR for law enforcement purposes violated the GLBA. As

already stated, “our limited determination on sufficiency review does

not rest on how the jury was instructed, but rather on how a properly

instructed jury would assess the evidence.” Hillie, 14 F.4th at 682

(citation modified).

30

Paitsel’s occupation gave him access to CLEAR, D.A 440–44,

and he manipulated the privileges provided by his official role

to derive information from the database by misrepresenting that

he was searching it for law enforcement purposes, S.A. 17–19;

D.A. 499, 517. CLEAR related to Paitsel’s official role

because his status as an FBI agent not only gave him access to

the database in the first instance, but also imposed

responsibilities on his use of the system. D.A. 487–93. Federal

law requires that Paitsel access CLEAR only for a permissible

purpose. Notwithstanding his role as an FBI agent, Paitsel was

not authorized to search for tenant information in the database

absent a legitimate law enforcement purpose. He nevertheless

did so, taking actions that falsely averred that he was accessing

the restricted database for specifically—and wrongly—

identified law enforcement purposes.

Furthermore, as testified to at trial without objection,

Paitsel’s access to CLEAR violated the GLBA, as well as

specific FBI training, instructions and regulations about access

to FBI databases. D.A. 440–49, 499–500, 505–06. This

neutralizes Paitsel’s argument that he violated only a vague

ethical duty. His access was an affirmative action that violated

a federal statute, the GLBA, and FBI regulations. For that

reason, as well as the other reasons outlined above, Paitsel

violated an official duty by running searches for PII on the

CLEAR database for personal profit after falsely representing

that the searches were for official law enforcement

investigative work—a representation without which he could

not have obtained the PII material.

Paitsel also suggests that his disclosure of telephone

numbers would not violate the GLBA, as such information is

available to the public and thus not meaningfully understood as

PII under the Act. But see Trans Union LLC v. FTC, 295 F.3d

42, 50 (D.C. Cir. 2002) (observing that GLBA regulations

31

include telephone numbers within definition of PII). Even if

true, Paitsel also disclosed other PII to Bailey, including at least

one tenant’s Social Security number. See D.A. 619. Social

Security information is indisputably non-public personal

information as defined by the GLBA. It is “[i]nformation a

consumer provides to [a financial institution] on an application

to obtain a loan, credit card, or other financial product or

service,” 16 C.F.R. § 313.3(o)(2)(i)(A), that one would not

have “a reasonable basis to believe is lawfully made available

to the general public,” id. § 313.3(p)(1); see also Trans Union,

295 F.3d at 50 (noting that regulatory definition of PII under

the GLBA encompasses Social Security numbers). In fact,

federal law restricts the release of Social Security information

absent an individual’s consent, even imposing criminal liability

for certain such disclosures. See 5 U.S.C. § 552a(b), (i).

Paitsel’s transmission of a tenant’s Social Security number to

Bailey thus independently sufficed to establish a violation of

his official duty.7

It is also immaterial that the PII on CLEAR was derived

from information collected by private third-parties, like credit

7

The dissent does not dispute that Social Security numbers are PII,

but instead contends that the evidence presented at trial regarding

Paitsel’s disclosure of Social Security information must be ignored

because the indictment did not specifically mention such a

disclosure, nor did the jury instructions. Dissenting Op. 10. But the

indictment alleged disclosures beyond merely telephone numbers as

the dissent claims, to encompass the provision of “non-public

information that PAITSEL obtained using FBI resources” more

generally, D.A. 73, and “personal contact information, including”

(but not limited to) “telephone numbers and email addresses,” D.A.

74. In any event, the indictment plainly alleges that Paitsel conveyed

to Bailey the same tenant’s “date of birth,” D.A. 81, which was

proven at trial, D.A. 619, and which the Thomson Reuters witness

testified constituted PII, D.A. 513–14.

32

companies. See D.A. 483, 494–95. Valdes strongly suggested

that “searching several police databases to supply otherwise

publicly available information to” a private party constituted a

violation of one’s official duty. 475 F.3d at 1320, 1327; see

supra Section III.B.1. Moreover, a private entity’s access to

PII—for instance, a bank’s knowledge of one’s name, contact

information, and account number, see D.A. 483–84—does not

render it publicly available information. The GLBA’s

implementing regulations acknowledge that consumers

regularly provide financial institutions with PII, including

“[a]ccount balance information” or “[i]nformation from a

consumer report,” like contact information. 16 C.F.R.

§ 313.3(o)(2)(B), (G). But that information is still “nonpublic”

under the Act, because it is not available to the general public.

Id. § 313.3(n)(1).

The dissent argues that our ruling “authorizes private

companies to define the offense through contractual

restrictions on those using its products.” Dissenting Op. 1–2 &

33

n.3.8,9 But as already articulated, it is federal law which

restricted Paitsel’s access to the information that he shared, and

his ability to discover that information was granted by virtue of

his position as an FBI agent with credentials to access CLEAR

along with his affirmative representation that he was acting in

an official FBI investigative capacity in undertaking the

searches. See United States v. Parker, 133 F.3d 322, 326 (5th

Cir. 1998) (upholding indictment under § 201(b)(2)(C) for

fraudulent use of computer system, holding that “official act”

under the statute “encompasses use of governmental computer

8

As stated, the dissent’s concerns are unfounded given that Paitsel

violated his official duty by transgressing federal law in falsely

claiming that he was engaged in law enforcement work and by

misusing his law enforcement credentials to do so. That is far more

than a mere contractual-use restriction. This alone distinguishes Van

Buren v. United States, where “the search breached department

policy” but did not violate an independent federal law. 593 U.S. 374,

380 (2021). Moreover, unlike Van Buren, Paitsel did not “obtain

information that . . . [was] otherwise available to [hi]m,” see id. at

378, as his access was restricted to law-enforcement purposes by a

federal statute. While the dissent urges that Van Buren refutes our

conclusion that Paitsel violated the GLBA, Dissenting Op. 2 n.3, 5

n.6, the cited analysis centers on concerns that the relevant statutory

clause “criminalizes every violation of a computer-use policy,” 593

U.S. at 394, as Van Buren was convicted for violating user

requirements imposed by policy (as opposed to a federal statutory

requirement).

9

United States v. Safavian, where we declined to hold that a federal

employee who refused ethical advice pursuant to a “voluntary

system” did not “impose[] a duty on those seeking ethical advice to

disclose” relevant information or be subject to criminal liability, also

presents a distinct set of facts. 528 F.3d 957, 964 (D.C. Cir. 2008).

There, “the government failed to identify a legal disclosure duty

except by reference to vague standards of conduct for government

employees.” Id. Here, the ruling is premised on a violation of federal

law.

34

systems to fraudulently create documents for the benefit of the

employee or a third party for compensation, even when the

employee’s scope of authority does not formally encompass the

act”).

If Paitsel, instead, had walked into a bank, flashed his

credentials, and falsely claimed that he was engaged in a law

enforcement investigation and demanded to see a client’s files

for his personal purposes, that conduct surely would have

breached Paitsel’s official duties. The only difference here is

that the FBI’s restricted database brought the bank to Paitsel.

Neither Paitsel nor the dissenting opinion explains why that

technological convenience makes Paitsel’s conduct any less a

breach of official duty. Sure, other non-governmental

entities—credit companies, fiduciaries, and the like—could

contract with Thomson Reuters to obtain such information for

a federally permissible purpose and themselves break the law

to sell that information to Bailey. Perhaps such conduct might

incur criminal liability under other statutes. But that possibility

does not detract from Paitsel’s own official duty to access the

CLEAR database solely for permissible purposes under federal

law.

The Government thus presented sufficient evidence from

which a reasonable factfinder could find that Paitsel had an

official duty to use CLEAR for only official purposes, which

he violated by searching for tenants’ information for his and his

friend’s personal financial advantage.

3.

Paitsel wrongly argues that this reading expands criminal

liability under 18 U.S.C. § 201. Similarly, the dissent

catastrophizes that after today’s decision, any federal employee

who accesses a “restricted database[], and disregards the

company’s contractual use restriction posted on a

35

screen . . . expecting—or being promised—a box of chocolates

or a bottle of wine—. . . will have committed the federal

criminal offense of bribery, punishable by up to fifteen years’

imprisonment.” Dissenting Op. 1.

These arguments overlook that the bribery statute requires

proof beyond a reasonable doubt of other elements, which are

defined more narrowly. First, the dissent disregards the

requisite mens rea requirement under the statute. To prove a

violation of the statute, the government must show beyond a

reasonable doubt that the defendant “corruptly demand[ed],

s[ought], receive[d], accept[ed], or agree[d] to receive or

accept anything of value.” 18 U.S.C. § 201(b)(2). As

discussed supra Section III.A, “bribery requires that the official

have a corrupt state of mind and accept (or agree to accept) the

payment intending to be influenced in the official act.” Snyder,

603 U.S. at 11. Intent is unquestionably a higher mens rea

standard than reckless disregard. See United States v. Smith,

104 F.4th 314, 328 (D.C. Cir. 2024), cert. denied, 145 S. Ct.

1478 (2025) (“[F]ederal courts are uniform that an ‘intentional’

mens rea does not include reckless conduct.”).

Second, as we explained in Valdes, our bribery scheme

“defines the predicate acts broadly, but the required

compensatory link narrowly,” such that “the payment at issue

must actually influence the act or omission,” a high bar for the

Government to clear. 475 F.3d at 1327. Even assuming that

the weighty mens rea requirement were satisfied, unless a box

of chocolates or a bottle of wine was the incentive which

“actually influence[d]” the violation of an official duty, there

would be no criminal liability under § 201.

Third, what firmly renders Paitsel’s conduct a criminally

punishable violation of an official duty here is not mere

transgression of a private entity’s “contractual-use restriction,”

36

but the federal laws and regulations requiring such a restriction.

See supra Part I & Section III.B.2. While true that “the screen

purporting to limit Paitsel’s use of CLEAR” was not itself a

federal law, but rather “a notice from Thomson Reuters” that a

permissible use of the database was required under federal law,

Dissenting Op. 8–9, this distinction makes no difference here.

Thomson Reuters may only disseminate certain information in

CLEAR to those with permissible reasons for accessing such

information, and the basis for that restriction is Congress’s

stated goal of protecting consumer information derived from

financial institutions, embodied in the GLBA. (Not “terms

dictated by a private entity,” id. at 9, as the dissent suggests.)

As he himself concedes, Appellant’s Br. 10 (“Privacy

legislation relating to some of the information that CLEAR

assembles requires CLEAR clients to confirm that they are

using that information only for certain permissible purposes.”),

Paitsel was not entitled to access tenants’ private information

and thus misused his law enforcement status to circumvent

Thomson Reuters’s implementation of Congress’s

requirements.

Ultimately, subsection 201(b)(2)(C) does not criminalize

any violation of an official duty, but rather only does so when

the other elements are met. They are here.

“Of course, if the action desired is entirely unrelated to the

subject matter over which the officer has a general duty, no

bribery can be committed.” 3 WHARTON’S CRIMINAL LAW

§ 43:9 (16th ed. 2021) (emphasis added); 5 CYCLOPEDIA OF L.

& PROC. 1041 (7th ed. 1901–1912) (“[I]t has been held no

offense to offer a bribe for an act entirely outside the officer’s

official function.”). Those concerns have no purchase in this

case where the defendant was able to access an official,

statutorily restricted FBI database solely by virtue of his

official position and his affirmative representation that his

37

searches were for official FBI investigative purposes. So this

case bears no resemblance to Paitsel’s concerns about federal

employees being held liable for sharing information from a

public telephone book in exchange for payment. Such conduct

has no relation to an FBI agent’s general duties. (And, in any

event, the GLBA’s implementing regulations do not protect

numbers located in telephone books from disclosure because

that information “is lawfully made available to the general

public.” 16 C.F.R. § 313.3(p)(1), (p)(3)(iii)(B) (exempting

information from a telephone book).)

4.

Our ruling also continues to give full effect to every

provision of § 201 and our binding en banc precedent,

notwithstanding the dissent’s contrary contentions.

The dissent first says that our early cases “stand for the

proposition that ‘official duty’ consists of performing ‘official

acts.’” Dissenting Op. 4. The prose of these opinions refers to

“acts official in character,” Thomson, 37 App. D.C. at 467, but

the decisions predate the enactment of 18 U.S.C. § 201, which

for the first time defined distinct offenses based on violations

of an “official act” or an “official duty.” As such, those rulings

cannot overrule Congress’s later choice to enact a statute

setting forth several discrete offenses. To hold that an “official

duty” is made up solely of “official acts” would render

nugatory the official duty offense, 18 U.S.C. § 201(b)(2)(C),

since all such conduct would be charged as official act bribery

under § 201(b)(2)(A). See Duncan v. Walker, 533 U.S. 167,

174 (2001) (“It is our duty to give effect, if possible, to every

clause and word of a statute. We are thus reluctant to treat

38

statutory terms as surplusage in any setting.”) (citation

modified).10

Collapsing official duty bribery into official act bribery

would also run counter to our en banc precedent interpreting

the statute otherwise. See Valdes, 475 F.3d at 1327 (“[T]he

bribery provisions cover two additional predicate classes”

beyond official act bribery under § 201(b)(2)(A), including

§ 201(b)(2)(C)). The dissent’s reliance on § 201(a)(3), which

defines “official act”; McDonnell, 579 U.S. at 566, which

concerned “the proper interpretation of the term ‘official act’”

as defined in § 201(a)(3); and the ultimate holding in Valdes,

concerning an official act gratuity conviction, is unavailing.

See Dissenting Op. 4–6 & n.7. This is not an official act case.

Recall that in Valdes, we reversed Valdes’s conviction for

receiving a gratuity, holding that conduct akin to that at issue

here did not constitute an official act within the meaning of

§ 201. 475 F.3d at 1330. Gratuity under § 201(c)(1)(B) is a

lesser-included offense of “official act” bribery under

§ 201(b)(2)(A) and carries a lesser maximum penalty of two

years’ imprisonment, 18 U.S.C. § 201(c)(3), whereas bribery is

punishable by up to fifteen years’ incarceration, id. § 201(b)(4).

Section 201 does not define a lesser-included offense for

“official duty” bribery—that is, there is no “official duty”

gratuity contained in the statute.

After Valdes, then, Paitsel could not be convicted of an

“official act” offense for the alleged conduct in this case, which

necessarily foreclosed prosecution under a gratuity theory. In

other words, Paitsel cannot be guilty of the lesser “official act”

gratuity offense, but is still properly convicted of “official

10

Paitsel does not argue that “official duty” should be defined as

coextensive with, or comprised of, conduct amounting to an “official

act.”

39

duty” bribery. Thus, the dissent’s concern that our holding

regarding the scope of “official duty” bribery does not comport

with the scope of “official act” gratuity is meritless. See

Dissenting Op. 4–6. The latter is not a lesser included offense

of the former. To the extent that this outcome appears

asymmetrical, as our en banc Court previously recognized, our

role in correcting any perceived imbalance is circumscribed:

“Judicial extension of those for the gratuity provision would

disturb the balance Congress chose—which, of course, it is free

to modify at any time.” Valdes, 475 F.3d at 1328. “When

Congress in 1962 reorganized the bribery statute and added an

illegal gratuity offense, it could easily have made that provision

perfectly mirror all of the predicate acts listed in the older

bribery provision; instead, however, it chose to include only the

‘official act’ predicate . . . and not the ‘fraud’ or ‘official duty’

predicates . . . .” Id. Although the dissent charges us with

“throw[ing] up [our] hands and blam[ing] Congress for the

incongruity[,]” we must continue to respect the drafting

decision of the legislature and our Court’s prior interpretation

of this statute.

Finally, our decision expressly relies upon the “official”

nature of the § 201(b)(2)(C) offense, leaving open for another

day how to discern the definition of § 201(b)(1)(C)’s

lawful-duty offense, and the relationship between an “official

duty” and a “lawful duty.”

IV.

For the reasons stated, we affirm Paitsel’s convictions and

sentence.

So ordered.

RANDOLPH, Senior Circuit Judge, dissenting:

The majority’s decision in this case is enormously

important because of its dire implications not only for the

defendant David Paitsel but also for federal employees in

general.

Throughout the federal government there are now more

than 300,000 databases, nearly 2,000 of which are in the

Department of Justice alone.1 Many are non-public and

restricted, available only to federal employees in their respective

offices (or chambers). As in this case, a private company often

owns and maintains the database, and dictates the terms of its

use for federal (and private) subscribers.2

Now, as a result of the majority’s ill-considered decision,

any federal employee who logs onto one of these restricted

databases, and disregards the company’s contractual use

restriction posted on a screen, and, for instance, retrieves an

article from a newspaper website, a case from Westlaw, or

someone’s telephone number for a friend, expecting—or being

promised—a box of chocolates or a bottle of wine—now that

federal employee will have committed the federal criminal

offense of bribery, punishable by up to fifteen years’

imprisonment.

This picture is profoundly disturbing. The majority’s

decision converts ethical constraints into federal criminal

offenses, and authorizes private companies to define the offense

through contractual restrictions on those using their products.

See Van Buren v. United States, 593 U.S. 374, 393-94 (2021);

1

See Data.gov.

2

Congress contemplated this private-public arrangement. See 44

U.S.C. § 3511(a)(2)(E)(v)(III).

2

United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008).3

I.

Paitsel’s principal argument—that the evidence was

insufficient to support his convictions—depends on whether the

bribery statute, 18 U.S.C. § 201(b)(2)(C), covered his alleged

conduct. It did not and we should have reversed his convictions.

The majority’s opinion recognizes the Supreme Court’s

decisions holding that the crime of bribery under § 201 requires

proof of a quid pro quo. Majority Op. 2, 9, 10, 11, 15. But that

is about all the majority does—recognize the Supreme Court’s

decisions. The balance of the majority’s opinion disregards what

in this case is the most important part of the Supreme Court’s

definition of federal bribery law.

The Supreme Court has clearly delineated an essential

prerequisite to finding that a governmental official has

committed the crime of § 201 bribery. A bribe, the Court held,

requires “a quid pro quo.” United States v. Sun-Diamond

3

As the Supreme Court observed in a related context, “the

Government’s interpretation of the statute would attach criminal

penalties to a breathtaking amount of commonplace computer

activity.” Van Buren, 593 U.S. at 393. “Many websites, services, and

databases . . . authorize a user’s access only upon his agreement to

follow specified terms of service. If the ‘exceeds authorized access’

clause [in 18 U.S.C. § 1030(a)(2)] encompasses violations of

circumstance-based access restrictions on employers’ computers, it is

difficult to see why it would not also encompass violations of such

restrictions on website providers’ computers. And indeed, numerous

amici explain why the Government’s reading of subsection (a)(2)

would do just that—criminalize everything from embellishing an

online-dating profile to using a pseudonym on Facebook.” Id. at 394.

3

Growers of Cal., 526 U.S. 398, 404 (1999). A quid pro quo

means “a specific intent to give or receive something of value in

exchange for an official act.” Id. at 404-05. The Court held the

same in McDonnell v. United States, 579 U.S. 550, 574 (2016):

“Section 201 prohibits quid pro quo corruption—the exchange

of a thing of value for an ‘official act.’”4 And again in Snyder v.

United States, 603 U.S. 1, 19 (2024): Ҥ 201(b), the bribery

provision for federal officials” is violated when the official

“accepts an up-front payment for a future official act . . ..”

The majority cites several ancient federal court decisions.

United States v. Birdsall, 233 U.S. 223, 230 (1914), which has

never been overruled, held that “[e]very action that is within the

range of official duty comes within the purview of” the bribery

statute then in effect. Three years earlier our predecessor court

held much the same: when “Congress used the term ‘official

function,’ it had reference to acts official in character, something

within the legal duty of the person performing them.” Thomson

v. United States, 37 App. D.C. 461, 467 (D.C. Court of Appeals

1911).5 And in the Fall case, which the majority also cites, our

court repeated a statement from Thomson: “There is no rule so

uniformly adhered to by the courts, both State and Federal, as the

one ‘that there can be no bribery of any official to do a particular

act, unless the law requires or imposes upon him the duty of

acting.’” Fall v. United States, 49 F.2d 506, 510 (D.C. Court of

Appeals 1931). As I read these decisions, they stand for the

4

It is “the corruption of official decisions through the misuse of

influence in governmental decision-making which the bribery statute

makes criminal.” Valdes v. United States, 475 F.3d 1319, 1324 (D.C.

Cir. 2007) (en banc) (quoting United States v. Muntain, 610 F.2d 964,

968 (D.C. Cir. 1979)).

5

The majority opinion uses “D.C. Circuit” but that is not accurate.

4

proposition that “official duty” consists of performing “official

acts.”

Despite the Supreme Court’s repeated definitions of § 201

bribery, the majority seems oblivious to the portion of the

Court’s interpretation of federal bribery law that matters most in

this case. Namely, that the offense of bribery under federal law

requires proof beyond a reasonable doubt that something of

value was exchanged for an “official act.” Our court too, ruling

en banc, made what amounts to the same point: “both our

precedent and the language of the statute make clear that § 201

is not about officials’ moonlighting, or their misuse of

government resources, or the two in combination.” Valdes v.

United States, 475 F.3d 1319, 1324 (D.C. Cir. 2007) (en banc).

That exactly describes the conduct for which Paitsel was

wrongly imprisoned.

Section 201(a)(3) defines “official act” as “any decision or

action on any question, matter, cause, suit, proceeding or

controversy, which may at any time be pending, or which may by

law be brought before any public official, in such official’s

official capacity, or in such official’s place of trust or profit.”

In McDonnell, the Court held that “an ‘official act’ is a

decision or action on a ‘question, matter, cause, suit, proceeding

or controversy.’ The ‘question, matter, cause, suit, proceeding

or controversy’ must involve a formal exercise of governmental

power that is similar in nature to a lawsuit before a court, a

determination before an agency, or a hearing before a committee.

It must also be something specific and focused that is ‘pending’

or ‘may by law be brought’ before a public official.” 579 U.S.

at 574.

The question here is similar to that posed in

5

McDonnell—did Paitsel’s retrieving of telephone numbers from

CLEAR amount to “official acts” as the Supreme Court has

interpreted the § 201 bribery provisions? The certain answer

here, as in McDonnell, is no.

Our en banc decision in the Valdes case, concerning

conduct indistinguishable from that of Paitsel, confirms as much.

475 F.3d 1319. We held that Valdes’ use of a police website to

match license plate numbers to individuals,6 and his receipt of

cash for doing so, did not constitute “official acts.” And so we

reversed Valdes’ conviction for receiving a gratuity in violation

of § 201(c). Id. at 1330.

As the majority opinion acknowledges, it follows from

Valdes that Paitsel could not have been convicted of violating

§ 201(c) for accepting illegal gratuities, an offense punishable

for a maximum of two-years imprisonment. See Majority Op.

38. But the majority sustains Paitsel’s conviction for bribery, an

offense punishable for a maximum of 15 years imprisonment.

On the face of it, this outcome is still another reason to

reject the majority’s conclusion. Our court recognized in Valdes

that the offense of gratuity is a lesser-included offense of the

crime of bribery. 475 F.3d at 1328. If Paitsel was not guilty of

6

The factual setting of Van Buren v. United States—“a former police

sergeant, ran a license-plate search in a law enforcement computer

database in exchange for money”—is the same as that in Valdes. 593

U.S. at 378. The Supreme Court reversed Van Buren’s conviction for

violating the Computer Fraud and Abuse Act of 1986, 18 U.S.C. §

1030. The Court held that the provision “does not cover those who,

like Van Buren”—and I add, those who, like Paitsel—“have improper

motives for obtaining information that is otherwise available to them.”

Id. The analysis in Van Buren refutes the majority’s notion that Paitsel

violated some “federal law” by accessing CLEAR. Id. at 393-94.

6

the lesser offense, how could he be guilty of the greater offense?

My colleagues give no answer—and there is none. Instead they

throw up their hands and blame Congress for the incongruity

their decision creates.

To sum up, the Supreme Court’s interpretation of federal

bribery law is that, without an official act there is no quid pro

quo, and without any quid pro quo there is no crime of bribery

under § 201. Thus, Paitsel would be guilty of violating his

“official duty” only if he was performing “official acts,” which

he was not.7 For these reasons alone, Paitsel’s conviction for

bribery (and hence for conspiracy to commit bribery) should be

reversed.

II.

Instead of following these Supreme Court decisions, the

majority has devised some other theory—exactly what theory is

unclear—in order to affirm Paitsel’s convictions.

One thing we can discern is that the majority thinks its

theory rests on the notion that Paitsel’s “access” to CLEAR

violated the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.

Majority Op. 30-31. That notion comes out of the blue and is

7

The majority asserts that this case is not “an official act

case.” Majority Op. 38. As I have explained above, that assertion flies

in the face of the Supreme Court’s decisions in Sun-Diamond,

McDonnell, and Snyder, each of which held—as the Court stated in

Sun-Diamond—that the crime of bribery in § 201 requires “a specific

intent to give or receive something of value in exchange for an official

act.” 526 U.S. at 404-05.

7

mistaken.8 The Indictment did not charge Paitsel with any such

violation and the district court, in its extensive jury instructions,

did not instruct the jury to determine whether Paitsel violated the

Gramm-Leach-Bliley Act. Indeed, the court’s jury instructions

never even mentioned that Act.

My colleagues have thus taken upon themselves the role of

a grand jury, charging an offense that was never alleged, and the

role of a trial judge who never gave an instruction dealing with

this statute, and the role of a jury who was not required to, and

did not, make any findings about Paitsel’s compliance with the

Gramm-Leach-Bliley Act.

These considerations, in addition to those in part I, above,

are more than enough to condemn the majority opinion. But I

cannot let slide the majority’s many other errors.

8

Inscrutable too is the majority’s digression about state court bribery

cases, most of which are more than 100 years old. Of its eleven state

cases, some dealt with state statutes and the rest were state common

law criminal decisions. Yet ever since 1812 it has been established

that, unlike state courts, federal courts cannot exercise common law

criminal jurisdiction. United States v. Hudson & Goodwin, 11 U.S.

(7 Cranch) 32 (1812). And while Congress can use “common-law

term[s] in a statute,” Majority Op. 22 (quoting Microsoft Corp. v. I4I

Ltd. P’ship, 564 U.S. 91, 101 (2011)), the majority’s cases do not

define “official duty” and § 201 does not “simply punish[]” bribery,

id. at 21 (quoting Carter v. United States, 530 U.S. 255, 267 n.5

(2000)). Congress therefore did not “leav[e] the definition of [the

offense] to the common law.” Id. (quoting Carter, 530 U.S. at 267

n.5). In any event, my colleagues do not indicate whether their

ancient state court cases are still good law. Their omission is

understandable. Attempting to update the century-old bribery laws in

those eleven states would be a fool’s errand. The cases have nothing

at all to do with the issues now before us.

8

At the center of the case is CLEAR, an online platform

owned and maintained by a Canadian company, Thomson

Reuters Corporation. The company sells CLEAR to private

users such as financial institutions, collection agencies and law

firms, and to governmental entities like the FBI and the

Department of Homeland Security. As with all users of CLEAR,

the FBI pays a fixed fee for the information on CLEAR about

individuals in the company’s database. Thomson Reuters

compiles this information from many sources, public and

private.

An opening screen on CLEAR states that in order for

Thomson Reuters—for the company—to comply with the

Gramm-Leach-Bliley Act, the user must identify a “permissible

purpose” before using the company’s database. The Gramm-

Leach-Bliley Act regulates financial institutions and their

disclosure of information about their customers. 15 U.S.C.

§ 6802(a).9 Although one would hardly know this from the

majority’s opinion, the Gramm-Leach-Bliley Act is not a

criminal statute. It is a civil statute and it is enforced through

civil regulatory measures. See 15 U.S.C. § 1605.

The majority opinion states that “Federal law require[d]”

Paitsel, in order to use CLEAR, to identify his “permissible

purpose.” Majority Op. 30. The majority’s assertion, even if it

mattered, is mistaken and misleading. The screen purporting to

9

The majority opinion quotes this part of the Act: “a nonaffiliated

third party that receives from a financial institution nonpublic

personal information” may not disclose the information except in

limited circumstances. Majority Op. 5 (quoting 15 U.S.C. § 6802(c)).

The majority seems to think this provision applied to Paitsel. It did

not. Paitsel did not receive information from a “financial institution,”

as defined in 15 U.S.C. § 6809. He received information from

Thomson Reuters, which is not a financial institution.

9

limit Paitsel’s use of CLEAR was not a “federal law,” as the

majority asserts. It was a notice from Thomson Reuters. And

contrary to the majority’s contention, this notice was not a mere

“implementation of Congress’s requirements” regarding

nonpublic information. Majority Op. 36. The CLEAR warning

screen is overbroad and covers information that Thomson

Reuters obtained from sources other than financial institutions.

The majority opinion thus renders application of a federal

criminal statute dependent on terms dictated by a private entity,

in this case a foreign corporation.

The majority makes a related error in describing the

information Paitsel retrieved from CLEAR and turned over to

Bailey.10 (Again it is not clear why the majority thinks the nature

of the information matters.)

The “information,” as charged in the Indictment, consisted

of “personal contact information” or “contact information” from

CLEAR. D.A. 76, 77, 78, 79, 81. In each of the instances set

forth in the Indictment, this “information” was a telephone

number. Id. CLEAR contains information from many sources

other than regulated financial institutions. No one knows

whether the “contact information” Paitsel obtained and gave to

Bailey—telephone numbers of apartment tenants—came from

financial institutions. A senior manager from Thomson Reuters

testified at trial that telephone numbers are not “personal

identifying information,” contrary to what the majority opinion

now asserts. That testimony is the only evidence on this subject

10

Bailey’s use of that information was for a permissible purpose

under District of Columbia law.

10

the jury had before it.11

The majority comes up with another idea. Now we are told

that Paitsel disclosed to Bailey “at least one tenant’s Social

Security number.” Majority Op. 31.

But the Indictment charged Paitsel only with disclosing

“personal contact information,” that is, telephone numbers. The

Indictment did not mention Social Security numbers. To state

the obvious, having a person’s Social Security number would not

enable anyone to contact that person. And the trial judge’s jury

instructions never mentioned anything about Paitsel disclosing

Social Security numbers.

11

The majority opinion cites Trans Union LLC v. FTC, 295 F.3d 42,

50 (D.C. Cir. 2002), a decision upholding a regulation (16 C.F.R.

§ 313) said to include telephone numbers as “nonpublic personal

information” under 15 U.S.C. § 6809(4)(A). Another part of the

regulation now states that telephone numbers may not be so described.

16 C.F.R. § 313.3(p)(3)(ii). In any event, the jury was not made

aware of any of this and the only evidence it had came from the

testimony of the Thomson Reuters manager recounted in the text.