United States v. Valdes, Nelson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2005 Decided February 24, 2006

No. 03-3066

UNITED STATES OF AMERICA,

APPELLEE

V.

NELSON VALDES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00154-01)

Paul H. Zukerberg argued the cause and filed the briefs

for appellant.

Lisa H. Schertler, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.

Attorney at the time the brief was filed, and Roy W. McLeese,

III and J. Patrick Rowan, Assistant U.S. Attorneys.

Before: HENDERSON, Circuit Judge, and EDWARDS* and

WILLIAMS, Senior Circuit Judges.

*

Senior Circuit Judge Edwards was in regular service at the

time of oral argument.

2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

Dissenting Opinion filed by Circuit Judge HENDERSON.

WILLIAMS, Senior Circuit Judge: An FBI informant

working undercover gave cash to Nelson Valdes, then a

detective with the D.C. Metropolitan Police Department

(“MPD”), apparently as a reward for Valdes’s searching

several police data bases to supply information. (Save for

information about the non-existence of an arrest warrant for a

fictitious person, the information was, according to

uncontradicted testimony, publicly available. Joint Appendix

(“J.A.”) 659-61, 663-64.) Valdes was convicted under 18

U.S.C. § 201(c)(1)(B) of three counts of receipt of illegal

gratuities “for or because of an[] official act.” Valdes argues

that the statute is far less sweeping than the government

successfully claimed in district court, and that under a proper

construction the government’s evidence was insufficient. He

makes a number of other claims, including attacks on two

related aspects of the jury instruction and an argument that he

was entitled to acquittal as a matter of law on grounds of

entrapment. We agree with Valdes that the district court’s

interpretation of the statute was error and that the government

failed to show that the acts for which Valdes received

compensation were official acts within the meaning of § 201.

We therefore reverse the conviction without reaching Valdes’s

other claims.

* * *

On the evening of February 17, 2001, William Blake,

working as an undercover informant for the FBI, went on

assignment to a Washington nightclub called “1223” (located

at 1223 Connecticut Avenue, NW). At “1223” Blake was

3

introduced to Valdes as a judge, and Valdes in turn

identified himself as an MPD detective. The two met again at

“1223” a week later, on which occasion Valdes gave Blake his

business card with his cell phone number, saying it was “just

in case [Blake] ever needed a favor.”

On March 17, an FBI agent instructed Blake to see if

Valdes would provide him with police information.

Accordingly, the FBI entered into state computer data bases

the names of five fictitious individuals, along with fictitious

addresses and license plate numbers. J.A. 361-A-B, 365-67,

371-72. That evening, again at “1223,” Blake asked Valdes if

he could do him a “favor” of looking up the license plate

numbers of some individuals that Blake said owed him

money, presumably to track down their contact information.

Valdes indicated that it would be “no problem” and told Blake

to call him on his cell phone to get the information. On

leaving, Blake handed Valdes a $50 bill; no testimony

describes the accompanying conversation if any. Four days

later, Blake called Valdes, introducing himself as “the judge,”

reiterated his earlier request and provided Valdes with the first

license plate number. Valdes then obtained the name and

address of the license holder through a query to the

Washington Area Law Enforcement System (“WALES”), a

computer data base linked to state data bases. When Blake

called back later, Valdes provided him with the name and

address. After expressing satisfaction with the information,

Blake asked Valdes, “How much [do] I owe you for this?”

and Valdes responded, “Just a thank-you.”

Two days later, on March 23, Blake called Valdes again

and asked him to run a second license plate query, which

Valdes agreed to do. Blake proposed that they meet the next

day in person; as Blake testified by way of explanation, a

meeting would enable him to offer Valdes money: “I couldn’t

push [money] through the phone.” The FBI equipped Blake

4

for the meeting with a gold Rolex and Mercedes-Benz

automobile with audio and video recorders; it is unclear what

the handlers’ purpose was in outfitting the phony judge with a

Rolex and Mercedes. Blake and Valdes arranged to meet at a

local gas station, where Blake paid Valdes $200 and asked

him to run a third license plate. Valdes provided Blake with

the names and addresses for the second and third plates that

evening over the phone, again having obtained the

information via WALES.

On March 30, Blake asked Valdes to run a fourth license

plate. The two agreed to meet the next day at the same gas

station; there, Blake paid Valdes $100 upon receiving the

fourth name and address, again obtained via WALES. Blake

also asked Valdes to check whether a friend of Blake’s “ha[d]

a warrant,” handing Valdes an additional $100 to “give you a

little more incentive.” Valdes again used WALES and that

night told Blake that there was no warrant out on the person.

Valdes was indicted on three counts of bribery, in

violation of 18 U.S.C. § 201(b)(2)(A) and (C). A jury

convicted him of three counts of the lesser-included offense of

receipt of an illegal gratuity, in violation of 18 U.S.C.

§ 201(c)(1)(B).

* * *

We review the sufficiency of the evidence de novo,

considering it in the light most favorable to the government, to

determine whether any rational trier of fact could have found

Valdes guilty beyond a reasonable doubt of all required

elements of the crime. See United States v. Schaffer, 183 F.3d

833, 839-40 (D.C. Cir. 1999).

The anti-gratuity statute provides that:

5

Whoever . . . being a public official . . . otherwise

than as provided by law for the proper discharge of

official duty, directly or indirectly demands, seeks,

receives, accepts, or agrees to receive or accept anything

of value personally for or because of any official act

performed or to be performed by such official . . . shall be

fined under this title or imprisoned for not more than two

years, or both.

18 U.S.C. § 201(c)(1)(B) (emphasis added). An “official act”

is defined for these purposes 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 . . . .

18 U.S.C. § 201(a)(3). Unlike most of § 201’s anti-bribery

provisions, the anti-gratuity provision has no requirement that

the payment actually “influence[] . . . the performance” of an

official act. Compare, e.g., 18 U.S.C. § 201(b)(2)(A) .

Valdes argues that logging onto the WALES system to

retrieve public information does not constitute a “decision or

action” and that there was no “question, matter, cause, suit,

proceeding or controversy” regarding any of the individuals

that was or could be pending before Valdes. He relies

primarily on United States v. Muntain, 610 F.2d 964 (D.C.

Cir. 1979), where we found that the defendant Muntain, an

Assistant to the Secretary for Labor Relations at the

Department of Housing and Urban Development (“HUD”),

had not accepted illegal gratuities for an official act when he

was compensated by private persons for selling private auto

insurance schemes to labor unions with whose leaders he also

dealt on official HUD business. We rejected the

government’s argument that official acts “encompass any acts

6

within the range of an official’s public duties,”

which the government argued included Muntain’s meetings

with labor union officials. Id. at 967. As the promotion of

group auto insurance was not a matter that “could be brought

before Muntain—or, for that matter, anyone else at HUD—in

an official capacity,” there was no danger that the gratuities

received could have induced Muntain “to act improperly in

deciding a HUD-related matter.” Id. at 968.

The government tries to distinguish Muntain on the basis

that it involved private auto insurance schemes, whereas (it

argues) WALES queries inherently relate to the official duty

of conducting police investigations. But the Muntain court

plainly didn’t share the government’s present view of the

public/private divide. Muntain used government resources in

contacting possible labor union insurance purchasers,

combining trips on government business with insurance

promotion. Id. at 967-68. Further, besides conducting such

meetings, Muntain had, as the government stressed in an

alternative argument, wielded his supervisory authority to

direct HUD subordinates to assist him in promoting insurance.

Id. at 969. Thus Muntain deployed government resources

(travel opportunities and workforce), just as did Valdes (the

WALES database). But in Muntain we clearly rejected the

idea that such a use of government resources was in itself an

“official act” within the meaning of § 201(a)(3).

The government’s concept of “official act” is striking in

its complete failure to address the statutory clause modifying

“decision or action,” namely, “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.” The words are far from self-defining, but they

suggest at least a rudimentary degree of formality, such as

would be associated with a decision or action directly related

to an adjudication, a license issuance (or withdrawal or

7

modification), an investigation, a procurement,

or a policy adoption. Easily included, of course, would be a

clerk’s manufacture of official government approval of

Supplemental Security Income benefits, as in United States v.

Parker, 133 F.3d 322 (5th Cir. 1998); compare Dissent at 6

n.3, or an official’s “ignoring garbage violations and parking

violations” he was charged with enforcing, compare Dissent at

10-11. It is telling that the government’s brief, in purporting

to quote the statute, actually omits all the objects of the

preposition “on” except “matter” (using ellipses, to be sure).

Appellee’s Br. at 35.

Yet in United States v. Sun-Diamond Growers, 526 U.S.

398, 406 (1999), the Supreme Court relied on those words in

rejecting the government’s claim that an official violated the

statute in receiving benefits given simply because of his

official position. The official’s mere “ability to favor the

donor in executing the functions of his office” was not

enough. Id. In reaching its holding the Court discussed

several hypothetical gifts that it said would not fall under

§ 201(c)(1)(A) for want of any “official act,” including a

replica sports jersey given to the President during a

ceremonial White House visit, a school baseball cap given to

the Secretary of Education during a visit to a school, and a

complimentary lunch provided for the Secretary of

Agriculture in connection with a speech to farmers. Id. at

406-07. While hosting a ceremony, visiting a school, and

delivering a speech “are assuredly ‘official acts’ in some

sense,” they “are not ‘official acts’ within the meaning of the

statute, which, as we have noted, defines ‘official act’ to mean

‘any decision or action on any question, matter, cause, suit,

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

or which may by law be brought before any public official.’”

Id. at 407. Thus the Court, in rejecting the above

“absurdities,” id. at 408, invoked the exact words jettisoned

by the government here.

8

Valdes’s WALES queries would appear to fit within the

range of activities excluded from coverage by Sun-Diamond’s

examples. All the officials’ acts (the WALES queries,

ceremony, visit, or speech) have in common that none is a

“decision or action” that directly affects any formal

government decision made in fulfillment of government’s

public responsibilities. Thus distortions of government

execution of policy are (depending on one’s scheme of

classification) either non-existent or entirely in the realm of

casual and informal use of government resources. While one

or more of Valdes’s disclosures may have been unethical,

sanctionable, or even criminal independently of § 201, and

while disclosure of an outstanding arrest warrant might have

an indirect effect on its execution, none of these disclosures

constituted a “decision or action on any question, matter

[etc.]” in the usual sense of those words. Sun-Diamond

mainly distinguished a “decision or action on any question

[etc.]” from mere office-holding and its potential for later

action; yet the case also suggests a distinction between a

“decision or action on any question [etc.]” and the vast array

of behavior that Congress could have covered with some all-

encompassing phrase such as “act or conduct related to the

official’s work or in any way using government resources.”

We also put aside for obvious reasons the government’s

straw man argument that the mere fact that persons were

fictitious does not mean that “matters,” etc. could not be

pending with respect to them. It points to United States v.

Myers, 692 F.2d 823, 849-50 (2d Cir. 1982), where the

Second Circuit upheld conviction of a congressman for

receiving bribes to introduce private immigration bills

permitting fictitious sheiks to remain in the United States.

But, assuming correctness of the decision, private immigration

bills are “questions,” “matters,” and “proceedings” that a

congressman could have “brought before” himself and fellow

congressmen. Id. at 850. Here, by contrast, the informant

9

plainly sought no change in the status of the FBI’s five

fictional beings, with respect to whom not even a fictional

“question, matter, cause, suit proceeding or controversy” was

pending. Of course once there is a fictional person, a fictional

“matter” might be ginned up. But a matter can likely be

generated for every datum in every government data base. If,

as the government implicitly contends, liability applies when

no “matter,” etc. is either pending, or would be brought into

existence “for or because” of the gratuity (as it would have

been in Myers), or can otherwise in any plausible way “be

brought” before the official, the analysis would sweep in any

compensation for sharing any such datum.

The government makes two other arguments in support of

its expansive reading of “official acts.” First, it argues that

§ 201(c)(1) itself contains a “safety valve,” as its language

introducing subsections (A) and (B) contains the phrase

“otherwise than as provided by law for the proper discharge of

official duty.” See also § 201(c)(1)(B) (containing the same

qualifying clause). At oral argument it suggested specifically

that Sun-Diamond’s hypothetical of the Secretary of

Education’s visit and receipt of a baseball cap would be

“otherwise” authorized under regulations issued by the Office

of Government Ethics (“OGE”), 5 CFR § 2635.204(a), as a

gift below $20 and thereby excepted from § 201. See Oral

Arg. Tape at 21:20. The OGE regulations, the government

argues, further provide that a gift in accordance with the OGE

regulations does not violate the anti-gratuity statute. 5 CFR

§ 2635.202(b). But the Sun-Diamond Court has already been

there and done that. As Justice Scalia noted, “We are unaware

of any law empowering OGE to decriminalize acts prohibited

by Title 18 of the United States Code.” 526 U.S. at 411.

Indeed, the Court indicated just the opposite, namely, that

while gifts below $20 are excepted under the OGE

regulations, they are not excepted under § 201, id. at 411-12,

and thus rejected the government’s claim that the “safe

10

harbors [from OGE regulations] are, in general,

incorporated into the enforcement of section 201.” See Reply

Brief of the United States at 10, Sun-Diamond, 1999 WL

83925. Interestingly, the OGE regulations take away what

they purport to give, saying that despite their terms an

employee must not “[a]ccept a gift in return for being

influenced in the performance of an official act.” 5 CFR

§ 2635.202(c)(1). Application of that provision would in

many cases (depending on the relation between the

regulation’s “influenced” and § 201’s “for or because of”)

return us to the interpretive issue we started with and thus to

the government’s sweeping notion of an “official act.”

More generally, Sun-Diamond went on to reason that

anti-corruption law manifested a maze of precisely targeted

prohibitions, and exceptions from more general prohibitions,

so that “a statute in this field that can linguistically be

interpreted to be either a meat axe or a scalpel should

reasonably be taken to be the latter.” 526 U.S. at 412.

Finally, the government argues that United States v.

Birdsall, 233 U.S. 223 (1914), controls. There the Court said,

“Every action that is within the range of official duty comes

within the purview of these sections.” Id. at 230. Whatever

the language may mean, the government’s proposed broad

reading was certainly not Birdsall’s holding. The Court was

focused on rejecting the defendants’ theory on appeal—that

for conduct to qualify as an “official act” it must be one

“prescribed by statute,” id. at 231, as one of the decisions

under review had held. See United States v. Birdsall, 206 F.

818, 821 (D. Iowa 1913); see also United States v. Van Wert,

195 F. 974, 977 (D. Iowa 1912) (arguably imposing an even

more stringent test, saying that “unless the act . . . is a

violation of some act of Congress . . . or of some departmental

rule or regulation authorized by Congress . . . no crime has

been committed.”). So far as authority was concerned, the

11

Court held, it was enough that the act—there an Interior

Department or Bureau of Indian Affairs recommendation of

clemency for persons charged with selling liquor to Indians—

fulfilled “an established usage which constituted the common

law of the department and fixed the duties of those engaged in

its activities.” 233 U.S. at 231.

We find unconvincing the government’s argument that

Congress endorsed its reading of Birdsall in the 1962

recodification of the statute. See S. Rep. No. 87-2213 (1962),

reprinted in 1962 U.S.C.C.A.N. 3852. The Report merely

notes in cursory fashion that the “term ‘official act’ is defined

to include any decision or action taken by a public official in

his capacity as such,” id. at 3856, and makes no mention of

the words that the Sun-Diamond Court and we find crucial—

the reference to a “question, matter, cause, suit, proceeding or

controversy.” Sun-Diamond and Muntain—both decided after

the 1962 recodification—clearly reject the notion that “every

action within the range of official duty” automatically satisfies

§ 201’s definition. See 526 U.S. at 412; 610 F.2d at 967 n.3

Because the government failed to show that the payments

received by Valdes were for any “decision or action on any

question, matter, cause, suit, proceeding or controversy, which

may at any time be pending, or which may by law be brought

before any public official,” as required by 18 U.S.C. § 201,

the judgment of conviction is

Reversed.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

In Mexico, they call it “la mordida” (literally, “the bite”); in

Iran, “bakhshish”; and in France, “pot-de-vin.” Here in

America, we call it a “payoff” and, today, the majority calls it

lawful.

Appellant Nelson Valdes appeals his conviction on three

counts of receiving illegal gratuities in violation of 18 U.S.C. §

201(c)(1)(B). The majority concludes that the government’s

evidence was insufficient as a matter of law to establish that

Valdes committed an “official act” within the meaning of 18

U.S.C. § 201(a)(3). In reversing Valdes’s conviction, I believe

it grossly misconstrues the meaning of the term “official act,”

relies on inapposite case law and ignores on-point precedent.

Accordingly, I must dissent.

I.

On February 17, 2001, Valdes, a Metropolitan Police

Department (MPD) officer, first met William Blake, a Federal

Bureau of Investigation (FBI) informant posing as a judge, at a

popular D.C. nightclub and the two exchanged pleasantries.1

One week later, Blake again saw Valdes at the nightclub. At

that time, Valdes handed Blake a business card and told Blake

to call him if Blake ever needed a favor. On St. Patrick’s Day,

Blake returned to the nightclub and once again saw Valdes.

After engaging in small talk, Blake told Valdes that he (Blake)

was having difficulty collecting a debt. Blake told Valdes that

he might “need him to do me a favor” and handed Valdes $50.

Joint Appendix (J.A.) 50. Four days later, Blake called Valdes

and asked Valdes to obtain registration information for a certain

(fictitious) license plate number. Valdes agreed. Blake called

Valdes again later that day to obtain the requested information.

Valdes, not having had an opportunity to obtain it, asked Blake

to call back later. Blake, in turn, called a third time that day and

Valdes supplied him with the registration information. Blake

1

The relationship between Valdes and Blake lasted a little over

six weeks during February–March 2001.

2

asked Valdes, “Uhhhhh, how much [sic] I owe you for this?,”

and Valdes responded, “Just a thank you.” Joint Exhibits

Appendix (J.E.A.) 111. Blake told Valdes, “Naw, man, I’ll take

care of you somehow” and Valdes laughed. J.E.A. 111.

Two days later, Blake called Valdes again. Blake asked

Valdes to obtain the registration information for another

fictitious license plate number and again Valdes agreed. Blake

also suggested a face-to-face meeting on the next day. The next

day, Blake called Valdes to arrange the meeting. The two met

15 minutes later at a gas station. During this meeting Blake

handed Valdes $200, saying, “Here man, put this in your

pocket.” J.E.A. at 118. Valdes said, “Oh, thank you.” J.E.A. at

119. Blake handed Valdes a scrap of paper with another license

plate number on it and asked Valdes to obtain the registration

information.

Blake called Valdes again on March 30th, telling Valdes, “I

got another tag here for you . . . .” J.E.A. at 129. Valdes told

Blake to call back in 20 minutes. Blake called back and gave

Valdes another fake license plate number, asking Valdes to meet

him in person the next night, and Valdes replied “no problem.”

J.E.A. at 130. Blake called Valdes the next day to set up the

meeting. They agreed to meet in 15 minutes. During the

meeting, Valdes handed Blake a piece of paper with the

requested registration information written on it. Blake handed

Valdes $100 and Valdes responded, “That’s cool.” J.E.A. 121.

Blake then asked Valdes to check for any arrest warrant on a

friend of his (also fictitious). He told Valdes, “Okay, yeah, look,

give you a little more incentive, right?” and handed Valdes

another $100. J.E.A. 122. Valdes replied, “Thanks.” J.E.A.

122. Blake called Valdes later that night. Valdes told Blake to

call back and Blake called back as Valdes was searching for the

arrest warrant information. Valdes informed Blake that there

was no outstanding warrant on Blake’s friend. J.E.A. 127.

3

Valdes obtained both the registration information and the

warrant information from the Washington Area Law

Enforcement System (WALES) computer database. In each

instance, he logged onto WALES from the police station using

his unique user identification number. WALES was accessible

to Valdes as an MPD officer only. J.A. 407, 418; J.E.A. 91.

Valdes had attended an eight-hour training course, passed an

examination and attended re-training biennially in order to

maintain his access to WALES. J.A. 416. The use of the

database was strictly limited to law enforcement purposes. J.A.

418; J.E.A. 91. Once he logged onto the database, Valdes

accessed the information Blake requested.2 Valdes then relayed

to Blake the information he obtained from WALES. Although

Valdes did not request payment, he accepted from Blake a total

of $400 for the information (and an additional $50 apparently

for unspecified future favors). Based on this evidence, the jury

convicted Valdes of three counts of receiving an illegal gratuity.

II.

Section 201(c)(1)(B) of Title 18 of the United States Code

makes it unlawful for a public official, directly or indirectly, to

“demand[], seek[], receive[], accept[], or agree[] to receive or

accept anything of value personally for or because of any

official act performed or to be performed by such official.” 18

U.S.C. § 201(c)(1)(B). Receiving an illegal gratuity is a lesser-

included offense of bribery. United States v. Brewster, 506 F.2d

62, 68 (D.C. Cir. 1974); see also United States v. Schaffer, 183

F.3d 833, 841 (D.C. Cir. 1999) (noting difference between

bribery and illegal gratuity offenses). To establish the offense,

the government must prove that the defendant (1) is a public

official who (2) accepts, receives, etc. anything of value (3) for

or because of any official act performed or to be performed. See

2

As the majority notes, the FBI had earlier entered all of the

fictitious information into state computer databases accessible

through WALES. Maj. op. at 3.

4

United States v. Ahn, 231 F.3d 26, 31 (D.C. Cir. 2000). An

“illegal gratuity ‘can take one of three forms’: (1) a reward for

past action, (2) an enticement to maintain a position already

taken, or (3) an inducement to take or refrain from some future

official action.” See id. (quoting and citing Schaffer, 183 F.3d

at 841–42).

The majority concludes that the district court erred in

interpreting the statute and that “the government failed to show

that the acts for which Valdes received compensation were

official acts.” Maj. op. at 2. Under 18 U.S.C. § 201(a)(3), an

“official act” is defined 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.

The definition of “official act” has not been substantively

altered since it was first codified in 1866. See Act of July 13,

1866, ch. 184, § 62, 14 Stat. 168. In 1962, the Congress

consolidated in section 201 of Title 18 the various provisions in

the criminal code related to bribery. The consolidation effected

“no significant changes of substance” and, more important,

“[did] not restrict the broad scope of the present bribery statutes

as construed by the courts.” 1962 U.S.C.C.A.N. 3852, 3853.

Of particular relevance, the Senate Report noted that “[t]he term

‘official act’ is defined to include any decision or action taken

by a public official in his capacity as such.” Id. at 3856.

As the majority states, maj. op. at 7–8, the United States

Supreme Court first interpreted the “official act” language in

United States v. Birdsall, 233 U.S. 223 (1914). In that case, the

Court reinstated bribery charges against Birdsall in connection

with money he paid Interior Department officials to induce them

to recommend leniency for certain persons convicted of selling

5

liquor to Indians. Id. at 231. The statute at issue in Birdsall—

close in wording to the one we interpret today—made it illegal

for an official to accept money given with the intent to influence

“his decision or action” “on any question, matter, cause, or

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

law be brought before him in his official capacity.” Crim. Code

§ 39, 117, 35 Stat. 1096, 1109 (1909). Birdsall argued that the

indictment charged no offense because the officials’

recommendations of clemency did not constitute official acts

under the statute. Birdsall, 233 U.S. at 227. The district court

agreed, finding conclusive the fact that no statute gave Interior

Department officials the power to make sentencing

recommendations. United States v. Birdsall, 206 F. 818, 821

(D.C. Iowa 1913). The Supreme Court, however, disagreed with

the district court’s conclusion that an act was “official” only if

a statute explicitly authorized the official to perform it. Birdsall,

233 U.S. at 231. The Court declared that “[e]very action that is

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

the bribery statute. Id. at 230. It did not matter that the power

to make such recommendations was not expressly granted by

statute, rule or regulation. Id. at 231–32. The Court held that an

“official act” may be found in “established usage,” noting that

“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.” Id. at 231.

Our court has also taken a broad view of the meaning of

“official act” as used in the bribery statute. In United States v.

Muntain, 610 F.2d 964 (D.C. Cir. 1979), we discussed Birdsall,

noting approvingly that other courts had interpreted “official

act” to include those “actions or decisions involving matters

falling indisputably within the ambit of the public official’s

official duties.” Id. at 968 n.3. On the other hand, we concluded

that the term “official act” did not include the use of one’s status

6

as a public official to promote a purely private venture. Id. at

968. Muntain, a Housing and Urban Development (HUD)

undersecretary, peddled private group automobile insurance to

labor unions with which he dealt in his official capacity. Id. at

966–67. The use of his official status to further his private

venture did not run afoul of section 201 because “there was no

evidence that Muntain’s meetings with labor officials to discuss

and promote group automobile insurance involved a subject

which could be brought before Muntain or, for that matter,

anyone else at HUD in an official capacity.” Id. at 968. We

noted, however, that the decision would have been different had

the government shown that “[Muntain’s] responsibilities . . . at

HUD ha[d] been expanded by settled practice or otherwise to

include meeting with labor union officials concerning group

automobile insurance.” 3 Id. at 968 n.3.

3

See also United States v. Parker, 133 F.3d 322, 325 (5th Cir.

1998), cert. denied, 523 U.S. 1142. In that case, the defendant was

charged with violating section 201(b)(2)(C), which prohibits a public

official from “being induced to do or omit to do any act in violation

of [his] official duty.” Parker, a clerk to an administrative law judge

(ALJ) in the Social Security Administration (SSA), logged onto a

database and made false entries. She argued that that her conduct did

not constitute an act in violation of her official duty because she was

not authorized to make the entries. Id. The court rejected her

argument, using section 201(a)(3)’s “official act” definition. It

found that her conduct constituted an “official act” because the

appeals in which she entered fraudulent entries were pending in her

“place of trust or profit” and her “abuse of the SSA facilities and

equipment” coupled with abuse of her legitimate authority allowed

her to make the entries. Id. at 326. While the majority “easily”

includes Parker’s acts within its definition of “official act,” see maj.

op. at 7, I doubt that it agrees with Parker’s precise holding: “We

therefore hold that the term ‘official act’ encompasses use of

governmental computer systems to fraudulently create documents

. . . , even when the employee’s scope of authority does not formally

encompass the act.” Id. (emphases added).

7

The Supreme Court discussed the meaning of “official act”

in United States v. Sun-Diamond Growers of California, 526

U.S. 398 (1999). Its holding, however, covers a different issue,

namely, “whether conviction under the illegal gratuity statute

requires any showing beyond the fact that a gratuity was given

because of the recipient’s official position.” Id. at 400.

Consequently, the Court’s treatment of “official act” is dictum.

It does not, and was not intended to, sub silentio, lessen the

vitality of Birdsall and its progeny.4 But even if the Court’s

“official act” discussion were not dictum, Valdes’s conviction

of receiving illegal gratuities would nonetheless easily stand.

While the linguistics of section 201(a)(3) may be complicated,

the reason that Valdes’s receipt of money for accessing

information falls within its definition is simple.

In Sun-Diamond, the Court chose what it termed “the more

natural meaning” of section 201(a)(3), that is, that a gratuity

received “for or because of any official act” means “for or

because of some particular act of whatever identity.” Id. at 406

(emphasis added). It then discussed the “peculiar results” the

alternative reading would produce, criminalizing the receipt of

such token gifts as a sports jersey, a school baseball cap and a

free lunch—all received by the public official “based on his

official position and not linked to any identifiable act.” Id.

Anticipating the response that interpreting “official act” to

require an identifiable act would also produce “peculiar results”

in the sports jersey/school baseball cap/free lunch scenarios—

i.e., a sports jersey “for” a White House visit, a baseball cap

“for” a visit to the school and a free lunch “for” a speech—the

4

See Muntain, 610 F.2d at 968 (citing Birdsall); see also Parker,

133 F.3d at 326 (same); United States v. Biaggi, 853 F.2d 89, 98–99

(2d Cir. 1988), cert. denied, 489 U.S. 1052 (1989) (Congressman’s

letters on office letterhead to New York mayor regarding a

corporation’s arrears to city constitutes “official act,” citing

Birdsall).

8

Court dismissed these “absurdities” as falling outside the

statutory definition of “official act.” Id. at 408. By linking the

violation to a particular “official act,” it concluded, “it is

possible to eliminate the absurdities through the definition of

that term.” Id. (emphasis original). Hosting a sports team,

visiting a school and public speaking are not, in the words of

section 201(a)(3), “decision[s] or action[s] on any question,

matter, cause, suit, proceeding or controversy, . . . at any time

. . . pending, or . . . by law . . . brought before [the President or

a Cabinet Secretary].”

Not so with Valdes’s accessing and disclosing police

information.5 Valdes “act[ed] on a question, . . . which may at

any time be pending, or . . . by law be brought before [him], in

[his] official capacity.” The “question[s]” were “who owns this

license plate?” and “is there an outstanding arrest warrant

charging this person?” Valdes’s “action” was to investigate by

accessing WALES.6 And “for” this action, which he undertook

multiple times, he “accept[ed] . . . value personally [$400]” in

violation of 18 U.S.C. § 201(c)(1)(B). How many times in

performing his official duties has Valdes investigated vehicle

registration and outstanding warrants by accessing WALES?

While on patrol, probably hourly—while at headquarters, as

requests for that information are made of him. The point is, as

I noted earlier, simple. Valdes accepted money for performing

his duty as an MPD officer. And section 201(c)(1)(B) makes

this conduct illegal.

5

The majority also characterizes the information Blake requested

as “police” information. Maj. op. at 3.

6

Alternatively, Valdes could be viewed as having “act[ed]” on

the “matter” of vehicle registration and arrest warrant information.

Such information is continuously “pending” before Valdes as part of

his job entails accessing it. Finally, the “matter” before Valdes was

in his “place of trust or profit” as WALES was accessible to him

solely because of his official position.

9

The majority puts all its eggs in the Sun-Diamond basket

and, in so doing, scrambles them. First, it treats the Court’s

“official act” discussion as something more than dictum.7

Second, it equates Valdes’s WALES search with White House

and school visits and a speech, concluding that none constitutes

a “ ‘decision or action’ that directly affects any formal

government decision made in fulfillment of government’s public

responsibilities.”8 Maj. op. at 8. Building on this language

(which is nowhere even hinted at in Sun-Diamond), it then

makes an exception from section 201(c)(1)(B)’s prohibition for

“casual and informal use of government resources.” Id.

Nonsense! Sun-Diamond recognizes no de minimis, “casual,”

“informal” or any other type of weighted exception from section

201’s coverage. Instead, the Court uses the definition of

“official act” to opine that certain actions would not be “within

the meaning of the statute.”9 Sun-Diamond, 526 U.S. at 407.

7

While the majority dismisses the language in Birdsall as dictum

because, in its view, that language is not necessary to the Court’s

holding, see maj. op. at 11, it considers the Sun-Diamond dictum

oracular in interpreting “official act.”

8

To equate a police officer’s taking money from a private citizen

for investigating/revealing police information with the President’s

accepting a jersey from a championship sports team for honoring the

team at the White House is itself an “absurdity.”

9

Before its Sun-Diamond discussion, the majority notes that the

words of section 201(a)(3), while “far from self-defining,” “suggest

at least a rudimentary degree of formality such as, . . . an

adjudication, a license issuance, . . . [or] an investigation.” Maj.

op. at 7 (emphasis added). While I plainly do not agree with the

formal/informal dichotomy the majority has fashioned, I note that it

at least recognizes that “an investigation”—precisely what Valdes

does, and did here, as an MPD officer—would carry the necessary

weight.

10

Were the majority correct—that “official act” includes only

“formal” duties—then a law enforcement officer’s failure to

perform his official—but routine—duties for money, which was,

before today, illegal, see, e.g., Ahn, 231 F.3d at 32 (reasonable

juror could find police officer’s failure to report violations of

law “official act”), would likewise be decriminalized for the

requisite “rudimentary degree of formality” would be lacking.

Our society knows what happens when we allow a police officer

to take money for doing—or not doing—his job. It produces a

man like Captain McCluskey:

He had been a good cop, a brave cop. The

tough young punks terrorizing the street corners

fled when he approached and finally vanished

from his beat altogether. He was a very tough

cop and a very fair one. He never took his son

around to the storekeepers to collect his money

presents for ignoring garbage violations and

parking violations; he took the money directly

into his own hand, direct because he felt he

earned it . . . . He always made his rounds. He

gave his stores a lot of protection, a lot of

service. When winos and drunks filtered up

from the Bowery to panhandle on his beat he got

rid of them so roughly that they never came

back. The tradespeople in his precinct

appreciated it. And they showed their

appreciation.

He also obeyed the system. The bookies in

his precinct knew he would never make trouble

to get an extra payoff for himself, that he was

content with his share of the station house bag.

His name was on the list with the others and he

never tried to make extras. He was a fair cop

who took only clean graft and his rise in the

11

police department was steady if not spectacular.

Mario Puzo, The Godfather 137 (Signet ed. 1978).

I believe that the government has established that Valdes’s

accessing of police information constitutes an “official act.”

Notwithstanding some of the information was otherwise

publicly available, WALES was available to Valdes only by

virtue of “[his] official capacity.” Moreover, the arrest warrant

information was not, as the majority concedes, publicly

available. See maj. op. at 2.

Today, the majority sets free a law enforcement officer who

accepted money personally for taking action in his official

capacity—precisely the conduct at which section 201(c)(1)(B)

is aimed. It ignores decades-old (and unchallenged) case law

and replaces a bright-line rule with an amorphous test that

depends on whether the action taken or decision made is

“formal.”10 See maj. op. at 8–9. Such an interpretation is

neither workable, reliable nor justifiable. Accordingly, I

respectfully dissent.

10

The majority’s discussion of Birdsall begins by minimizing

Birdsall’s broad definition of “official act” (“[e]very action that is

within the range of official duty”) with the prefatory remark

“Whatever the language may mean.” Maj. op. at 11. It concludes

with the statement that “Sun-Diamond and Muntain . . . clearly reject

the notion that ‘every action within the range of official duty’

automatically satisfies § 201’s definition.” Id. at 12. First, Sun-

Diamond does not “clearly” reject Birdsall’s language. The Court

does not even mention Birdsall because the definition of “official

act” was not the issue before it. As for Muntain, this court did not

reject Birdsall’s formulation—it restated that formulation as follows:

“Every action . . . within the range of official duty . . . include[s] as

well those duties customarily associated with a particular job.” 610

F.2d at 968 n.3. Valdes’s accessing of police information fits this

formulation as well.

12