United States v. Valdes, Nelson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 28, 2006 Decided February 9, 2007

No. 03-3066

NELSON VALDES,

APPELLANT

V.

UNITED STATES OF AMERICA,

APPELLEE

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.

Blair G. Brown and Barak Cohen were on the brief for

amicus curiae the National Association of Criminal Defense

Lawyers in support of 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 at the time the brief was filed, and

Roy W. McLeese, III and J. Patrick Rowan, Assistant U.S.

Attorneys.

J. Gerald Hebert was on the brief for amicus curiae

Campaign Legal Center in support of appellee.

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Before: GINSBURG, Chief Judge, SENTELLE, HENDERSON,

RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH,

and KAVANAUGH, Circuit Judges, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

Concurring opinion filed by Circuit Judge KAVANAUGH,

with whom Senior Circuit Judge WILLIAMS joins.

Dissenting opinion filed by Circuit Judge HENDERSON,

with whom Circuit Judge RANDOLPH joins.

Dissenting opinion filed by Circuit Judge GARLAND, with

whom Circuit Judges SENTELLE, HENDERSON, RANDOLPH,

and BROWN join.

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”). The cash was apparently a reward for Valdes’s

searching several police databases to supply otherwise

publicly available information to the informant. Based on

these exchanges, Valdes was convicted under 18 U.S.C.

§ 201(c)(1)(B) of three counts of receiving an illegal gratuity

“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 to show that either

his database queries or the release of the resulting information

constituted an “official act” under the statute. He makes a

number of other claims, including attacks on two related

aspects of the jury instruction.

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A panel of the court agreed that under a correct analysis

of the statute the evidence was insufficient, and accordingly

reversed the judgment; the panel did not reach Valdes’s other

claims. United States v. Valdes, 437 F.3d 1276 (D.C. Cir.

2006). The full court resolved to hear the case en banc, on the

sufficiency issue and on whether the district judge’s charge

had correctly defined an “official act.” We now decide that

the government failed to show that the acts for which Valdes

received compensation fell within the scope of § 201(c)(1)(B);

our analysis of the statute also makes clear that the jury charge

was error. We therefore reverse the conviction.

* * *

On the evening of February 17, 2001 William Blake,

working as an undercover informant for the FBI, went on

assignment to a Washington, D.C. nightclub called “1223”

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

was 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, “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. The FBI

then entered the names of five fictitious individuals, along

with fictitious addresses and license plate numbers, into state

computer databases. That evening, again at “1223,” Blake

asked Valdes if he could do him a “favor” and look up some

license plate numbers, ostensibly to get contact information on

individuals who owed him money. Valdes indicated that this

would be “no problem” and told Blake to call him on his cell

4

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 database linked

to state databases. 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

for the meeting with a gold Rolex and a Mercedes-Benz

automobile with audio and video recorders; it is unclear what

the handlers’ purpose was in outfitting the phony judge with

these luxury items. Blake and Valdes arranged to meet at a

local gas station, where Blake handed 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

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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 the 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:

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). An “official act” is defined for

these purposes as

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[1] any decision or action [2] on any question, matter,

cause, suit, proceeding or controversy, [3] which may at

any time be pending, or which may by law be brought [4]

before any public official, in such official’s official

capacity . . . .

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).

Conversely, the bribery provisions reach a number of

additional “predicate acts,” most notably an official’s “act in

violation of . . . lawful duty,” 18 U.S.C. § 201(b)(1)(C); see

also id. § 201(b)(2)(C) (“in violation of . . . official duty”), not

covered in the gratuity ban.

The government maintains that the bribery and gratuity

statute should be construed broadly, to encompass essentially

any action which implicates the duties and powers of a public

official. At oral argument, counsel argued that the specific

requirements of 18 U.S.C. § 201(a)(3) are “equivalent” to a

statute that would simply prohibit “any decision or action

within the scope of the official’s authority.” Transcript of

Oral Argument at 35. This view, the government argues, is

consistent with the Supreme Court’s statement that “[e]very

action that is within the range of official duty comes within

the purview of these sections.” United States v. Birdsall, 233

U.S. 223, 230 (1914). To the extent that the statutory clause

modifying “decision or action,” namely, “on any question,

matter, cause, suit, proceeding or controversy,” constitutes

limiting language (a point the government does not concede),

the government alleges that it is not relevant here: Valdes’s

searches and disclosures constitute plain “actions” on clear

“questions,” namely, “Who owns this license plate and where

7

does he or she live?” and “Does this man have an outstanding

arrest warrant?” Appellee’s Br. 29.

The government’s position, however, both misinterprets

the Supreme Court and ignores the plain text of the statute.

Whatever the broad language in Birdsall may mean, it was

certainly not the Court’s holding. In Birdsall, 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,” 233 U.S. 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.”). Rejecting this very narrow definition, the

Court held simply that “[i]n 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.” Birdsall, 233 U.S.

at 231. Birdsall did not, however, stand for the proposition

that every action within the range of official duties

automatically satisfies § 201’s definition; it merely made clear

the coverage of activities performed as a matter of custom.

More useful to this case is the Supreme Court’s

observation in United States v. Sun-Diamond Growers, 526

U.S. 398 (1999), that § 201(c) was “merely one strand of an

intricate web of regulations, both administrative and criminal,

governing the acceptance of gifts and other self-enriching

actions by public officials.” Id. at 409. The Court went on to

8

say that § 201(c)’s context warranted a specific interpretive

approach:

[T]he numerous . . . regulations and statutes littering this

field[] demonstrate that this is an area where precisely

targeted prohibitions are commonplace, and where more

general prohibitions have been qualified by numerous

exceptions. Given that reality, 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.

Id. at 412. In Sun-Diamond, this adjuration led the Court to

reject the government’s theory that 18 U.S.C. § 201(a)(3)

covers any action taken in an official capacity. While

numerous activities—hosting a ceremony, visiting a school, or

delivering a speech, for example—“are assuredly ‘official

acts’ in some sense,” id. at 407, it would be “absurd[],” the

Court said, to consider them within the scope of § 201, id. at

408. Sun-Diamond’s interpretive gloss, like the rule of lenity,

thus works to protect a citizen from punishment under a

statute that gives at best dubious notice that it has criminalized

his conduct.

Importantly for our purposes, the Sun-Diamond Court

reached its conclusion “through the definition of [the] term

[‘official act’],” id. (emphasis altered), and, in particular,

through a clause that the government seems quick to ignore

here, namely “on any question, matter, cause, suit, proceeding

or controversy.” At a minimum the government’s

interpretation of this six-term series is overly expansive,

extending the statute to any action that in effect answers any

question. More broadly, the government’s theory reads the

series out of the statute entirely. Neither position squares with

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Sun-Diamond’s direction or gives effect to all of the statutory

language.

In contrast, relying on the canon of noscitur a sociis, we

believe that the words “question” and “matter” are known by

the company that they keep. See, e.g., Cal. Indep. Sys.

Operator Corp. v. FERC, 372 F.3d 395, 399-401 (D.C. Cir.

2004) (describing the canon); see also United States v.

Menasche, 348 U.S. 528, 538 (1955) (“The cardinal principle

of statutory construction is to save and not to destroy.”)

(internal quotation omitted); Gustafson v. Alloyd Co., Inc.,

513 U.S. 561, 573-75 (1995) (applying Menasche’s principle).

Seen in that light, the six-term series refers to a class of

questions or matters whose answer or disposition is

determined by the government. That class includes such

questions as “Should the Congress enact new legislation

regulating corporate directors?,” “Should this person be

prosecuted?,” and “What firm should supply submarines for

the Navy?” But it would not include questions like “What is

your name?,” an issue that the government does not normally

resolve.

Our reading of the statute is buttressed by the elements

immediately preceding and following the six-term series. It

would be linguistically odd, at a minimum, to treat an answer

to a question as a “decision or action on” a question unless the

answer were one that the government had authority to decide.

The same holds true of the clause requiring that such

questions or matters be of a class which “may at any time be

pending, or which may by law be brought before any public

official.” Questions not subject to resolution by the

government are not ordinarily the kind that people would

describe as “pending” or capable of being “by law . . .

10

brought” before a public official, especially if the law imposes

no mandate on the official (or perhaps any official) to answer.

Our interpretation of the statute squares with this court’s

earlier decision in United States v. Muntain, 610 F.2d 964

(D.C. Cir. 1979), where we found that the defendant, 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

received compensation from private persons for selling private

auto insurance schemes to labor unions with whose leaders he

also dealt on official HUD business. In doing so we

characterized the government as asking the court to “construe

18 U.S.C. § 201(g) [prior version of § 201(c)(1)(B)] as a

statutory prohibition against the misuse of public office and

contacts gained through that office to promote private ends,”

id. at 967; we plainly rejected that construction. Nor were we

ready to read the statute as barring Muntain’s corralling his

subordinates into his insurance promotion enterprise, given

the absence of any behavior meeting the statutory definition of

“official act.” Id. at 969. Affirmatively, we said that “[i]t is

the corruption of official decisions through the misuse of

influence in governmental decision-making which the bribery

statute makes criminal.” Id. at 968.1 Understandably, the

dissenters’ brief discussion of the Muntain decision fails to

explain what distinguishes Muntain’s case (the use of

government property and his own subordinates to offer private

deals to union officials, with whom it was his job to deal on

1

Pace Judge Garland’s Dissent at 25, we were plainly

speaking of the statute’s gratuity and not its bribery provisions, as

the case involved no claim of bribery.

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official matters) from Valdes’s (use of government resources

to answer Blake’s questions).

Thus, 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. Even apart from the anti-bribery statute (which

we discuss below in addressing the dissenters), numerous

other regulations and statutes prohibit these activities. See,

e.g., 18 U.S.C. § 641 (prohibiting the conversion of

government property); 5 U.S.C. § 7353 (restricting federal

employees’ acceptance of gifts); 18 U.S.C. § 2721 (limiting

disclosure—not only by state employees but by other

“authorized recipient[s]”—of personal information such as a

driver’s address contained in state motor vehicle records); cf.

D.C. Code § 22–704 (prohibiting gratuities which cause an

“official to execute any of the powers in such official vested

. . . otherwise than is required by law”). And though the

likelihood that Valdes violated these other statutes implies

nothing direct about his culpability under § 201, their

existence underscores an observation in Sun-Diamond:

“Absent a text that clearly requires it, we ought not expand

this one piece of the regulatory puzzle so dramatically as to

make many other pieces misfits. . . . [N]ot only does the text

here not require that result; its more natural reading forbids

it.” 526 U.S. at 412.

Having defined the statute’s domain negatively, we

nonetheless emphasize that today’s decision is in no way at

odds with numerous other cases finding liability under § 201.

By focusing on those questions, matters, causes, suits,

proceedings, and controversies that are decided by the

government, our interpretation of the statute easily covers: a

clerk’s manufacture of official government approval of a

12

Supplemental Security Income benefit, as in United States v.

Parker, 133 F.3d 322 (5th Cir. 1998); a congressman’s use of

his office to secure Navy contracts for a ship repair firm, as in

United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988); and a

Veterans’ Bureau official’s activity securing a favorable

outcome on a disability claim, as in Beach v. United States, 19

F.2d 739 (8th Cir. 1927) (based on a predecessor statute). All

of those cases are clearly covered by the statute because they

concern inappropriate influence on decisions that the

government actually makes. Questions like “Should this

person receive a contract or disability benefit, and for how

much?” are simply in a different class from questions like

“Where do you live?” and “What kind of car do you drive?”

Section 201(a)(3) clearly encompasses the former, but not the

latter.

Our understanding of the term “official act” is thus in

stark contrast to the definition given in the post-trial jury

instructions:

The term “official act” means any decision or action

within the scope of the public official’s authority. The

term “official act” includes the decisions or actions

generally expected of a public official such as a police

officer. These decisions or actions do not need to be

specifically described by law, rule, or job description to

be considered an official act. Similarly, the term official

duty is not limited to a duty imposed by law or statute,

but includes any duty lawfully imposed in any manner by

settled practice within the government agency.

Over the explicit objection of the defendant, the court refused

to include either the statutory language on which we have

focused—the definition of “official act”—or anything

13

comparable. In light of our interpretation of the statute, this

was error—and by no means harmless error. Cf. United Mine

Workers v. Pennington, 381 U.S. 657, 670 (1965) (“Such

conduct is not illegal . . . . The jury should have been so

instructed and . . . we cannot hold this lapse to be mere

harmless error.”).

* * *

Our dissenting colleagues suggest that Valdes’s queries

violate § 201(c)(1)(B) because they constitute a police

investigation. We share an important premise of this

argument, namely the proposition that a police investigation is

in the same class of processes as a “question, matter, cause,

suit, proceeding or controversy.” “Should the police

investigate this person?,” for example, is clearly a question

answered by the government. Providing or receiving gifts for

or because of decisions to initiate, accelerate, retard, conclude,

or skew such an investigation is unquestionably conduct

prohibited by § 201.

Simply stating that police investigations are covered by

the bribery and gratuity statute does little to resolve the case,

however. While there does not appear to be any direct

precedent on the point, it seems implausible to assert that any

interrogative action done by an officer using government

resources constitutes an action on an “investigation” of the

kind which would be covered by § 201(c). The dissenters are

able to reach the contrary conclusion only because of their

readiness both to disaggregate the activities that may be

undertaken as part of an “investigation,” and to generalize

them. Of course “many police investigations are quite brief.”

Judge Garland’s Dissent at 8. And asking questions (of

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people, databases, and real evidence) is certainly a part of

investigating. Id. at 8-9. But it would constitute an enormous

expansion of the gratuities provision to define “action” on a

“matter” as encompassing every question asked and answered,

or even every question that somehow parallels those an

official might ask as part of his official duty and whose

answer might entail a use of government resources. It would

bring under the clause a broad range of moonlighting

activities that in any way paralleled an official’s regular work

(and perhaps that of a broad spectrum of fellow workers, as

well). Thus, a Department of Justice lawyer who used a

government Westlaw account to look up a legal question for a

friend would be, in the dissenters’ view, “deci[ding]” a

“question” that might “be brought before [him].” This goes

too far—and the dissenters do not define the outer bounds of

their theory. See id. at 19.

At the very least, we believe that a police officer’s

ascertainment of answers to questions cannot amount to a

“decision or action” on an investigation unless the

ascertainment itself, or other activity in the real world, could

have some prospect of bringing about (or, for that matter,

squelching or redirecting) some sort of government

investigation. Certainly Valdes’s behavior is a far cry from

that found illegal in United States v. Carson, 464 F.2d 424 (2d

Cir. 1972), where the investigation at issue was already

underway, see id. at 426, or in United States v. Ahn, 231 F.3d

26 (D.C. Cir. 2000), where the police officer defendant visited

illegally operated massage parlors and, in lieu of reporting the

violations as duty required, secured payments from the

parlors’ operators, see id. at 32. Valdes’s queries belonged to

no such active or incipient police investigation.

15

The dissenters mistakenly assert or at least imply that our

decision will have two adverse consequences: first, that it will

narrow the range of available “sting” operations against

corrupt public officials, see Judge Garland’s Dissent at 9-11,

and second, that many “successful bribery prosecutions under

[§ 201(b)(2)(A)]—which depend upon the same definition of

‘official act’ as gratuity prosecutions—would not be possible”

after our decision, id. at 11. Both concerns are quite ill-

founded.

Our decision has no effect on law enforcement’s ability to

conduct “sting” operations. The government’s problem is not

that Valdes’s queries involved purely fictional people. Even

if Blake had sought license plate and warrant information

about real people, that fact would not have transformed his

five questions, or Valdes’s answers, or both, into a

government investigation, or any other kind of “matter,” etc.,

covered by § 201(a)(3); those actions had no relationship

whatsoever even to a fictional government investigation.

Conversely, inveigling a suspect into a “sting” investigation

can generate criminal behavior under our reading of the

statute. Had government agents created an apparent drug

investigation scenario, and had Blake asked Valdes to add or

subtract specific individuals to be questioned, and paid him

“for or because of” Valdes’s compliance, the “sting” character

of the events would not absolve Valdes.

It is equally alarmist to suggest that our decision will

somehow render bribery prosecutions difficult to pursue. It is

true that the bribery and gratuity provisions overlap in the

sense that one type of predicate act covered by both

provisions is an “official act” as defined in § 201(a)(3). See

§§ 201(b)(1)(A) & 201(b)(2)(A) (stating “official act”

predicate for bribery, for offeror and recipient of bribe,

16

respectively). But the bribery provisions cover two additional

predicate classes, one of which consists of acts “in violation of

the lawful duty of such official or person.” See

§ 201(b)(1)(C); see also § 201(b)(2)(C) (“in violation of the

official duty of such official or person”). Though the

dissenters attempt to cast doubt on this variation of the bribery

prohibition by noting that our court has not yet had occasion

to construe “official duty,” the many successful prosecutions

under that term make reasonably clear that it embraces the

dissenters’ numerous hypotheticals. See, e.g., Parks v. United

States, 355 F.2d 167 (5th Cir. 1965) (explicitly finding that

defendant’s arrangement to pay an Air Force sergeant to sell

names of new recruits constituted inducement to do an act in

violation of the sergeant’s lawful duty); see also United States

v. Cruz, 946 F.2d 122, 123 (11th Cir. 1991) (defendant

convicted under bribery statute for providing an investigative

target with “information relating to the IRS and FBI’s

investigations in exchange for money”); United States v.

Lanci, 669 F.2d 391 (6th Cir. 1982) (defendant convicted of

bribery and conspiracy for his role in arranging to bribe an

FBI employee to divulge confidential information, such as the

names of FBI informants). Cf. United States v. Gjieli, 717

F.2d 968, 974 (6th Cir. 1983) (holding (in the bribery context)

that the “official duty” provision is broader than the “official

act” provision in that only the latter requires that “the act

induced fall within the federal employee’s official function”).

Our decision therefore plainly continues to allow bribery

prosecutions when, for example, someone offers something of

value to induce an official to provide information in violation

of official duty.

We believe that § 201 thus reflects a kind of balance

between the bribery and gratuity violations. For the former, it

defines the predicate acts broadly, but the required

17

compensatory link narrowly; culpability attaches for “any

official act,” “any fraud,” or “any act in violation of [a] lawful

duty,” but the payment at issue must actually influence the act

or omission. See §§ 201(b)(1)-(2). For gratuities, the reverse

is true; the predicate acts are defined narrowly (excluding, for

instance, mere violation of an official duty), and the required

compensatory link is defined more broadly (“for or because

of,” even where the compensation has had no influence). See

§ 201(c)(1).

The dissenters suggest that the legislative history

undermines this analysis because of a House Report, H.R.

Rep. No. 87-748, at 19 (1961), observing that the gratuity

provision strikes at conduct with “the appearance of evil.”

Judge Garland’s Dissent at 23. But a generality of this sort

seems a weak basis for disregarding the differences in

statutory language. 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

of 18 U.S.C. § 201(b)(1) & § 201(c)(1) (1964), and not the

“fraud” or “official duty” predicates of 18 U.S.C. § 201(b)(2)-

(3) & § 201(c)(2)-(3) (1964). See 18 U.S.C. § 201(f) & § 201

(g) (1964). The textual distinction could not be clearer.

The dissenters then go on to reason that we do “public

officials no favor” by effectively eliminating “illegal gratuity”

as a lesser included offense of bribery, as it deprives juries of

the chance to give defendants a break. Judge Garland’s

Dissent at 24. This of course disregards all the cases where

the behavior meets the predicate act requirements of both

statutes. More importantly, our job is not to provide juries

with a broad menu of opportunities to punish an “evil act.”

18

We are to interpret the text of the statute as written by

Congress. Here, the bribery provision covers a larger set of

predicate acts than does the gratuity provision. 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. Cf. United States v. Leyva, 282 F.3d 623,

625 (9th Cir. 2002) (noting with regard to § 201(b)(2)(B),

which prohibits acts of fraud on the United States, that “[t]he

absence of any official act requirement is particularly pointed

in light of explicit ‘official act’ or ‘official duty’ language in

other subsections of § 201,” and that “[w]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.”) (internal citations

omitted) (internal quotation omitted).

* * *

Though not squarely raised, a set of arguments closely

related to that made by the dissenters requires examination:

That even if Valdes’s actions do not themselves constitute an

“investigation,” his queries and disclosures constitute

elements of—i.e., “decision[s] or action[s] on”—some future

investigation that might one day “be brought” before Valdes

or another public official.

In line with our previous discussion, simple interrogative

activity cannot qualify as a “decision or action on any

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

merely because one can imagine that the activity would

qualify as such in some imagined investigation that might

conceivably “be brought” before some public official. Any

19

such notion appears to lack a limiting principle; in our

context, for example, it would encompass any WALES

search, even if the officer revealed the results to no one,

because that search might one day be relevant to a future

investigation. The more natural reading of the “may by law

be brought” language would recognize, however, that

“question[s], matter[s]” and the like typically can not “by law

be brought” before an official until the underlying issue has

surfaced to some degree. An obvious case would be a gratuity

for an NLRB member offered “for or because of” his hoped-

for ruling on a matter then (1) pending before an ALJ or (2)

extant in the form of a company’s or union’s initial charge.

Perhaps a live labor dispute with real potential for Board

intervention might be enough (we need not decide the point).

In all these cases the “matter” that “may by law be brought”

before the Board is at least nascent; it is not a pure fiction.

The same is true for the clause “may at any time be pending”;

an issue that is linked only by pure supposition to an

imaginary future matter (including an investigation) cannot

qualify as one that may, in any meaningful sense, be

“pending” before an official, now or at “any time” in the

future.

Exactly how developed an issue must be before it

qualifies as possibly pending or able to be brought by law is

something we need not decide. As already discussed, the

scenario presented to Valdes gave neither him, nor any other

police officer, any reason for official investigation of the

individuals for whom Blake sought license number or warrant

information. To say that in this context there was a “matter”

that might “by law be brought” before some official is to

render the statute an archetypical “meat axe.”

20

A related objection is that the answers that Valdes gave to

Blake—in a more general sense, the release of information—

constitute the requisite “decision[s] or action[s] on” some

stage of a hypothetical future investigation. This too has an

overbreadth problem—what question, on any topic, can we

say with confidence could never be part of any hypothetical

investigation?

Except in limited circumstances (of which those

discussed below are a clear example), we do not believe that a

release of information can constitute a “decision or action on

any question, matter, cause, suit, proceeding or controversy.”

Sun-Diamond itself addressed the question of whether “a

group of farmers would violate § 201(c)(1)(A) by providing a

complimentary lunch for the Secretary of Agriculture in

conjunction with his speech to the farmers concerning various

matters of USDA policy.” 526 U.S. at 407. Those policy

matters were undoubtedly “question[s] [or] matter[s]” that

were “pending, or which may by law be brought.” Yet Sun-

Diamond at least indirectly rejects the notion that sharing

information about them—likely including at least a glimpse

into some hitherto non-public features of the agency’s

decision-making—would violate the statute.

There are, of course, procedures, of which the most

prominent are those established by the Freedom of

Information Act, under which officials process requests for

the release of documents or non-document information, and in

doing so take a “decision or action on [a] question, matter,

cause, suit, proceeding or controversy.” Thus, for example, a

gratuity given for or because of the disposition of a FOIA

request (its grant or denial, or the acceleration or retardation

of its grant or denial, or any skewing of the terms of its grant

or denial) must run afoul of the statute. But it cannot follow

21

that every question-and-answer between an official and a

citizen can be brought within the statute by simply

characterizing it as an “action on” a matter that “may by law

be brought” before a hypothetical FOIA official. (Many such

Q-and-As, including perhaps those of Blake and Valdes,

however, might qualify as acts “in violation of the official

duty” of the official, for purposes of the bribery provision.)

Again, any construction embracing such queries would smack

of the meat axe. Further, in such a reading the statute would

punish the disclosure of public information more severely

than other, more targeted statutes punish the disclosure of

confidential information. Compare the statute here, 18 U.S.C.

§ 201(c)(1)(B) (permitting imprisonment of no more than two

years), with 18 U.S.C. § 1905 (permitting imprisonment of no

more than one year for disclosing certain types of confidential

information acquired by an officer in the course of

employment). Thus, unless there is something more than the

ubiquitous abstract possibility that events might trigger a

statutorily prescribed disclosure process, 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. While the exact

location of this line may prove difficult, the colloquies

between Valdes and Blake fall far short of being even a start

of the sort of process exemplified by FOIA.

* * *

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

22

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

the judgment of conviction is

Reversed.

KAVANAUGH, Circuit Judge, with whom Senior Circuit

Judge WILLIAMS joins, concurring: I join the majority opinion

and add two brief points.

First, the facts and circumstances of this case are unusual,

and as the majority opinion indicates, the Court’s ruling on

Valdes’s case will not thwart future prosecutions of money-for-

information-disclosure. After today’s decision, just as before

today’s decision, a covered public official who in violation of

official duty corruptly provides information in return for

something of value commits a federal crime: bribery.

The amount of ink spilled on this case is largely a result of

the jury’s divided verdict, as well as small but key differences

in the textual scope of the bribery and illegal gratuities statutes.

Valdes was indicted solely for bribery – namely, disclosing

certain information in exchange for a few hundred dollars. At

trial, the prosecutor forcefully argued that the defendant was

guilty of bribery, stating in his closing argument, for example,

that “For a few hundred dollars, ladies and gentlemen, this

police officer was bought, and those few hundred dollars were

bribes.” At the close of evidence, the district judge properly

found that the evidence legally sufficed for the jury to find

Valdes guilty of bribery – that Valdes in violation of his official

duty disclosed information in exchange for money. But then the

jury was instructed on the bribery and illegal gratuities statutes.

Instructed on both statutes, the jury split the difference by

acquitting on bribery and convicting on illegal gratuities (illegal

gratuities carries lighter penalties than bribery). That divided

verdict has created a problem on appeal because the plain text of

the bribery statute actually applies to a broader range of

activities – such as disclosing information – than does the

gratuities statute. In other words, even though a jury lawfully

could have found Valdes guilty of bribery (as the district judge

concluded), we obviously cannot review the jury’s acquittal on

that charge. And even though the jury convicted Valdes of

illegal gratuities, the majority opinion correctly concludes that

2

conviction cannot stand because Valdes’s actions were not

covered by the text of the gratuities statute (a conclusion

supported by the Supreme Court’s strong and unanimous

statements in Sun-Diamond regarding the gratuities statute).

The background of this case underscores a key practical

consequence of today’s decision: In the typical future

prosecution of money-for-information-disclosure, the jury will

be instructed only on bribery – and the scenario in which a

defendant’s case slips through the cracks because of a split-the-

difference jury verdict will not recur.

Second, given that opinions in cases like this one often are

relied on by the hundreds of thousands of covered federal

officials and those who advise them on ethics issues, another

point warrants mention. Both the bribery and gratuities statutes

require the prosecution to show some nexus between a gift and

a covered official action. But public officials would be foolish

to assume the statutes really allow them that much room to

accept gifts. When they become aware of questionable gifts to

a public official, investigators tend to turn over many stones

trying to determine whether the gifts were linked to the public

official’s actions. And even without direct smoking-gun

evidence, prosecutors can prove such links with only

circumstantial evidence. Covered public officials who want to

stay clearly on the safe side of the criminal-law line (not to

mention comply with the phalanx of non-criminal regulatory

provisions in this area) therefore would be well-advised not to

accept certain gifts in the first place, rather than pinning their

hopes on after-the-fact arguments premised on statutory terms

such as “in return for” or “official act” or “official duty.” In

other words, absent an authorization or exception, public

officials might decline monetary gifts and ensure that trips,

tickets, and the like are paid for by the officials themselves, by

the government when so allowed, or (in the case of elected

3

officials) by a campaign or political committee when so allowed.

That’s certainly simpler, cleaner, and cheaper than attempting to

argue afterwards that a particular gift was not linked to an

official action.

KAREN LECRAFT HENDERSON, Circuit Judge, with whom

RANDOLPH, Circuit Judge, joins, dissenting:

In my dissent from the vacated panel decision, see United

States v. Valdes, 437 F.3d 1276, 1282-88 (D.C. Cir. 2006), I

previously expressed my profound disagreement with the

majority’s interpretation of the meaning of “official act” as

defined in 18 U.S.C. § 201(a)(3). While I fully join Judge

Garland’s excellent dissent, I write separately to elaborate on

two points I made earlier.

First, and most important, stare decisis requires us to comply

with the United States Supreme Court’s broad interpretation of

the term “official act” as set forth in United States v. Birdsall,

233 U.S. 223 (1914). In Birdsall, the precursor statute to section

201(a)(3) 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-

10 (1909). The Supreme Court held that an “official action”

need not be “prescribed by statute” and includes an action

“clearly established by settled practice,” Birdsall, 233 U.S. at

231, declaring that “[e]very action that is within the range of

official duty comes within the purview of” the statute, id. at 230.

It is hard to imagine a broader statutory reach than the language

of the precursor statute.1 And we are likewise bound to give the

successor statute—containing almost verbatim the all-inclusive

language—the same reach until and unless directed to do

otherwise. See Welch v. Tex. Dep’t of Highways & Pub.

Transp., 483 U.S. 468, 478-79 (1987) (“The rule of law depends

in large part on adherence to the doctrine of stare decisis. . . . It

follows that any departure from the doctrine of stare decisis

1

Nevertheless, the current version adds “suit” and “controversy”

to the list of undertakings. See 18 U.S.C. § 201(a)(3).

2

demands special justification.” (internal quotation omitted)).

The Supreme Court has never expressly overruled, watered

down or otherwise retreated from Birdsall.2 Nor do I believe the

Court has done so sub silentio in United States v. Sun-Diamond

Growers of Cal., 526 U.S. 398 (1999).

Sun-Diamond is a spectacular red-herring in this case. Sun-

Diamond addressed “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. The Court rejected the idea that section 201(c)(1)(A)

“requires only a showing that a gift was motivated, at least in

part, by the recipient’s capacity to exercise governmental power

or influence in the donor’s favor without necessarily showing

that it was connected to a particular official act,” id. at 405-06

(emphasis in original) (internal quotation omitted), holding

instead that “[t]he insistence upon an ‘official act,’ carefully

defined, seems pregnant with the requirement that some

particular official act be identified and proved,” id. at 406

(emphasis added). The Court did not, however, rule on the

statutory definition of “official act” or even mention Birdsall.

It simply referenced section 201(a)(3) in dicta after

acknowledging that the “official act” required by section

201(c)(1)(A) could produce “peculiar results,” such as

criminalizing the President’s receipt of a sports jersey for a

2

Indeed, our court and several of our sister circuits have over the

years cited Birdsall’s broad language approvingly. See United States

v. Muntain, 610 F.2d 964, 967-68 n.3 (D.C. Cir. 1979) (endorsing

Birdsall’s broad language notwithstanding its inapplicability to

challenged actions); see also United States v. Parker, 133 F.3d 322,

326 (5th Cir. 1998); United States v. Gjieli, 717 F.2d 968, 974-75 (6th

Cir. 1983); United States v. Carson, 464 F.2d 424, 433-34 (2d Cir.

1972); Wilson v. United States, 230 F.2d 521, 524 (4th Cir. 1956).

3

ceremonial White House visit, the Education Secretary’s receipt

of a school baseball cap for a school visit or the Agriculture

Secretary’s complimentary lunch for his speech to farmers. Id.

at 407. The Court explained, “[T]hose actions—while they are

assuredly ‘official acts’ in some sense—are not ‘official acts’

within the meaning of the statute,” id., and concluded, “[W]hen

the violation is linked to a particular ‘official act,’ it is possible

to eliminate the absurdities through the definition of that term,”

id. at 408 (emphasis in original). Other than iterating the term’s

full statutory definition, the Court added nothing to the

“definition of that term.”3 Id. at 407-08. And it most certainly

did not jettison precedent that is over ninety years old and intact.

The majority’s summary dismissal of Birdsall, Maj. Op. at 7, in

favor of an insupportable application of Sun-Diamond violates

our duty to faithfully apply precedent. See Agostini v. Felton,

521 U.S. 203, 237 (1997) (“[I]f a precedent of [the Supreme

Court] has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving

to [the Supreme Court] the prerogative of overruling its own

decisions.” (internal quotations omitted) (alteration added)); cf.

Eberhart v. United States, 126 S. Ct. 403, 407 (2005)

(applauding Seventh Circuit for following Supreme Court

precedent as “prudent course” rather than either “forc[ing] the

issue by upsetting what [it] took to be our settled precedents” or

“bur[ying] the issue by proceeding in a summary fashion”).

3

On this point, the majority’s conclusion that “the Sun-Diamond

Court reached its conclusion ‘through the definition of [the] term

[‘official act’],’” Maj. Op. at 8 (quoting Sun-Diamond, 526 U.S. at

408), and “in particular, through [the] clause . . . ‘on any question,

matter, cause, suit, proceeding or controversy,’” id. at 8 (quoting 18

U.S.C. § 201(a)(3)) (final alteration added), is flatly wrong.

4

Not only can the Sun-Diamond dicta not bear the weight the

majority saddles it with, the dicta does no more than

acknowledge “the venerable maxim de minimis non curat lex

(‘the law cares not for trifles’) [which] is part of the established

background of legal principles against which all enactments are

adopted, and which all enactments (absent contrary indication)

are deemed to accept.” Wis. Dep’t of Rev. v. William Wrigley,

Jr., Co., 505 U.S. 214, 231 (1992) (last two emphases added).

That is, the “absurdities” described in Sun-Diamond constitute

nothing other than de minimis exceptions.4 See Sun-Diamond,

526 U.S. at 408.

The second point is that this is a simple—but far from

inconsequential—case. The man on the street grasps what my

colleagues in the majority so inexplicably resist: you cannot

lawfully give money to a law enforcement officer for

performing a function of his office. I respectfully dissent.

4

Can anyone—including my colleagues in the majority—seriously

contend that the Supreme Court would have added to its list of

“absurdities” cash payments totaling at least $400 to Valdes for his

actions?

GARLAND, Circuit Judge, with whom Circuit Judges SENTELLE,

HENDERSON, RANDOLPH, and BROWN join, dissenting:

A guy walks into a bar. He meets a police detective, asks

him to search a law-enforcement database for the names and

home addresses of individuals holding certain Virginia

automobile license plates, and then hands the detective some

cash. He gives the detective more cash after the detective

provides the information, and still more as an “incentive” to

determine whether a “friend” of his has an outstanding arrest

warrant in New York. The guy -- who wears a gold Rolex,

drives a leased Mercedes-Benz, will meet only at night at a local

gas station, and advises the detective to “read between the lines”

-- tells the detective that he is a “federal judge.” He says that he

wants the information because “these f***ing people owe me a

lot of money.”

The detective cannot know who the “judge” really is, or

why he wants the information. He cannot know whether the

“judge” is a loan shark seeking to find and punish his debtors, or

whether he wants the information because the individuals are his

associates in a criminal enterprise, police officers who are

surveilling him, witnesses against him, or targets of identity

theft. The detective is wary: he uses another officer’s code to

access the restricted database and then runs the license number

of the “judge’s” own Mercedes, learning only that the Mercedes

is leased. Nonetheless, in the end he takes the cash -- repeatedly

-- and gives the “judge” the information he seeks.

For these acts, a jury convicted the detective of accepting an

illegal gratuity -- to put it bluntly, a “payoff.” Today, the court

reverses the conviction on the ground that accepting such a

gratuity does not constitute a crime. Because the court’s

decision is wrong, and because it undermines the prosecution of

public corruption, I respectfully dissent.

2

I

Both the facts and the law relevant to this case are

straightforward.

A

The defendant is the aforementioned police officer,

Metropolitan Police Department (MPD) detective Nelson

Valdes. The “judge” is William Blake, an undercover informant

for the FBI. After meeting Detective Valdes at a District of

Columbia nightclub, Blake gave Valdes several Virginia license

plate numbers and asked him to find out the names and

addresses of the holders of those plates. Blake told Valdes that

he would “take care of [him],” and that Valdes could “make

[himself] a few dollars.” Joint Exhibit Appendix (J.E.A.) 109,

111. Upon leaving the nightclub, Blake handed Valdes a $50

bill.

After taking the precautions noted in the introduction to this

opinion, Valdes ran the license plate numbers through the

Washington Area Law Enforcement System (WALES), a

restricted police database that officers are authorized to use for

law enforcement purposes only,1 and that serves as an interface

to the national law enforcement database known as the National

1

See MPD General Order 302.6, at 6 (J.E.A. 94) (“Information

from WALES [and] NCIC . . . shall be used for official legitimate law

enforcement purposes only.”); id. (stating that MPD employees

“making inquiries or receiving information on the Wales or [Regional

Arrest Information Network] terminal[s] shall take extraordinary

precautions to ensure that this information is not observable to

unauthorized persons”); United States v. Jordan, 316 F.3d 1215, 1222

(11th Cir. 2003) (“Access to . . . NCIC is circumscribed by strict rules

requiring that [it] be utilized for law enforcement purposes only.”).

3

Crime Information Center (NCIC).2 Valdes told Blake that he

would have to run the plates “one at a time,” because “they

monitor this stuff.” J.E.A. 111. Valdes’ WALES searches

produced the names, home addresses, and Social Security

numbers of the license plate holders, all of which were fictions

that the FBI had previously entered into the database in

preparation for the undercover operation. Valdes gave the

names and home addresses to Blake, who gave Valdes $200 on

one occasion and $100 on another. Blake also asked Valdes to

find out whether a “friend” had an outstanding arrest warrant in

New York, giving him another $100 as “a little more incentive.”

J.E.A. 121-22; Joint Appendix (J.A.) 281. NCIC indicated that

there was no outstanding warrant for Blake’s “friend” -- also a

fiction -- and Valdes so advised Blake. J.E.A. 127 (recording of

Valdes informing Blake that, “[a]ccording to the NCIC check,

nothing comes back”).

2

WALES “contains criminal history information regarding

arrests, address information, physical description (race, sex, date of

birth, height, weight, any scars or markings), police and correctional

identification numbers, and warrant information. It also contains

motor vehicle information (driver’s licenses, vehicle registrations,

vehicle identification numbers), social security numbers, aliases,

fingerprint classifications, warnings about particular persons, and

attempts to locate both missing cars and people. In addition,

‘WALES’ interfaces with several other law enforcement records

systems, including the National Law Enforcement Telecommunication

System (‘NLETS’), which allows an exchange of information between

individual State databases and is maintained by the Federal Bureau of

Investigation (‘FBI’); the Criminal Justice Information System

(‘CJIS’), which contains arrest information from the police district[s]

. . . , and the National Crime Information Center (‘NCIC’), which is

maintained by the FBI.” United States v. Hutchinson, 408 F.3d 796,

799 (D.C. Cir. 2005).

4

For the foregoing conduct, Valdes was charged with

accepting a bribe in violation of 18 U.S.C. § 201(b)(2)(A). The

jury acquitted him of that charge, but convicted him of the lesser

included offense of accepting an illegal gratuity in violation of

18 U.S.C. § 201(c)(1)(B). As the Supreme Court explained in

United States v. Sun-Diamond Growers, the difference between

bribery and gratuity is one of intent. See 526 U.S. 398, 404-05

(1999). To be guilty of accepting a bribe, one must “corruptly”

receive a payment “in return for . . . being influenced in the

performance of any official act.” 18 U.S.C. § 201(b)(2)(A).

One can be guilty of accepting an illegal gratuity, however,

simply for accepting a payment “for or because of” the

performance of an official act. Id. § 201(c)(1)(B). In other

words,

for bribery there must be a quid pro quo -- a specific

intent to give or receive something of value in

exchange for an official act. An illegal gratuity, on the

other hand, may constitute merely a reward for some

future act that the public official will take (and may

already have determined to take), or for a past act that

he has already taken.

Sun-Diamond, 526 U.S. at 404-05. It is from his conviction for

accepting an unlawful gratuity that Valdes appeals.

B

The gratuity subsection of section 201 makes it a crime for

a “public official” to “receiv[e]” 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).

There is no dispute that Valdes was a public official (statutorily

defined as including employees of the District of Columbia, id.

§ 201(a)(1)), and that he personally accepted something of value

5

($450) for or because of the acts he took at Blake’s request. The

only issue is whether those acts constituted “official act[s]”

within the meaning of the statute.

Subsection 201(a)(3) defines “official act” -- for purposes

of both the gratuity and the bribery subsections -- to mean “[1]

any decision or action[, 2] on any question, matter, cause, suit,

proceeding or controversy, which [3] 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. § 201(a)(3). Valdes’ conduct

satisfies all three parts of the statutory definition. The following

discussion outlines the essential points of the analysis; the areas

of disagreement with the opinion of the court are discussed in

succeeding Parts.

First, Valdes made a “decision” -- or, even more clearly,

took an “action.” He decided to and did initiate WALES checks

of the license plate numbers Blake gave him. He did the same

regarding the name Blake gave him for the purpose of

conducting a warrant search.

Second, the action that Valdes took was on a “question [or]

matter.” However vague those terms may be, there can be no

dispute that a “matter” includes an “investigation.” See Oral

Arg. Tr. at 70-71 (concession by Valdes’ counsel that a “matter”

includes an “investigation”). Indeed, another section of the

same chapter of the United States Code, which bars a former

official from making appearances in connection with a

“particular matter” in which the official had participated while

in government, expressly defines “particular matter” as

including “any investigation.” 18 U.S.C. § 207(i)(3); see also

id. § 205(h) (defining a “covered matter” under another Code

provision, § 205, as including an “investigation”).

6

Finally, an investigation is clearly a matter that “may at any

time be pending, or [that] may by law be brought before” Valdes

in his “official capacity [or] place of trust or profit.” Valdes was

a police detective whose job, by definition, was to conduct

investigations. Indeed, in the document that Valdes signed to

gain access to WALES, he stated that he intended to use the

database to “conduct criminal investigations and background

checks.” J.E.A. 83; see also J.E.A. 84. And as noted above,

when Valdes used WALES, he was using a restricted database

to which he had access only by virtue of his status as a police

officer.

Much of this is common ground, although the court reaches

its conclusions by a different route. According to the court, “the

words ‘question’ and ‘matter’ are known by the company that

they keep,” Court Op. at 9, and hence those more general terms

must be interpreted to reflect the same “class of processes” as

the other terms in the six-term series listed in the definition of

official act, id. at 13. There is a reasonable argument that the

series was instead intended to broaden the statutory definition,

rather than to limit it. See United States v. Valdes, 437 F.3d

1276, 1284-85 (D.C. Cir. 2006) (Henderson, J., dissenting). But

in any event, the court concedes that “a police investigation is in

the same class of processes as a ‘question, matter, cause, suit,

proceeding, or controversy.’” Court Op. at 13. Thus, even on

the court’s view of the appropriate approach to interpreting

subsection 201(a)(3), an investigation constitutes an “official

act.” See id. at 13.

The court further insists that the “six-term series refers to a

class of questions or matters whose answer or disposition is

determined by the government.” Id. at 9. I am not certain what

work this formulation performs beyond that already

accomplished by the express requirement of subsection

201(a)(3) that the question or matter must be one that “may at

7

any time be pending, or [that] may by law be brought before any

public official, in such official’s official capacity.” But even

accepting the court’s formulation, there is still no dispute as to

the conclusion. As the court states: “‘Should the police

investigate this person?’ . . . is clearly a question answered by

the government.” Court Op. at 13. And “[p]roviding or

receiving gifts for, or because of, decisions to initiate,

accelerate, retard, conclude, or skew [a police] investigation is

unquestionably conduct prohibited by § 201.” Id. at 13.

Having identified common ground, the next Part addresses

the field of disagreement: whether there was sufficient evidence

for a jury to find that Valdes’ actions amounted to an

investigation and therefore an official act.

II

Although the court and I agree that an investigation is an

“official act” within the meaning of subsection 201(a)(3), the

court holds that Valdes’ conduct cannot -- as a matter of law --

constitute an investigation. That holding is untenable.

A

Viewing the “evidence in the light most favorable to the

government” as we must, United States v. Alexander, 331 F.3d

116, 127 (D.C. Cir. 2003) (internal quotation marks omitted),

the actions that Detective Valdes took in this case are the routine

steps that police officers take in a wide variety of investigations.

Running license plate numbers and checking for outstanding

warrants provide important information about both suspects and

witnesses, often helping the police to separate one from the

other. That is why Valdes sought access to WALES in the first

place -- to “conduct criminal investigations and background

checks.” J.E.A. 83. Indeed, the case law of the District of

8

Columbia is replete with references to the use of WALES for

these and other investigative purposes.3

1. The court dismisses the acts taken by Valdes as the

“ascertainment of answers” to a few questions, Court Op. at 14,

and as “simple interrogative activity,” id. at 18. But many

police investigations are quite brief. A WALES search may take

only a few minutes, yet in that interval it can eliminate a suspect

or confirm that he is a fugitive.4 Some investigations begin and

end with a single step: the running of tags. That step may tell a

traffic officer that the person he has stopped is wanted for a

crime,5 or that he is just a minister on his way to church. The

brevity of an inquiry, and the limited number of steps required

to achieve its object, cannot alone be enough -- certainly not as

3

See, e.g., Hutchinson, 408 F.3d at 797-802; Dorman v. District

of Columbia, 888 F.2d 159, 160-61 (D.C. Cir. 1989); Duggan v.

District of Columbia, 884 A.2d 661, 664 (D.C. 2005); Thomas v.

United States, 731 A.2d 415, 418 (D.C. 1999); Duncan v. United

States, 629 A.2d 1, 1 n.1 (D.C. 1993).

4

See, e.g., Hutchinson, 408 F.3d at 801 (“By confirming that

Hutchinson either was or was not providing false identification

information to the police, a ‘WALES’ check ultimately could assist

Detective Hilliard in evaluating whether or not Hutchinson was the

stabbing suspect.”); Thomas, 731 A.2d at 418 (noting that the officer

began to suspect that the defendant had falsified his identity after

running a WALES check); Duncan, 629 A.2d at 1 n.1 (stating that a

WALES check disclosed that the suspect’s license had been

suspended).

5

See, e.g., Anderson v. Alameida, 397 F.3d 1175, 1178 (9th Cir.

2005) (defendant placed “in custody as a fugitive from justice” after

NCIC check revealed an outstanding arrest warrant); Childress v.

United States, 381 A.2d 614, 616 (D.C. 1977) (defendant arrested

after WALES check revealed outstanding warrant).

9

a matter of law -- to rule it out as an investigation covered by the

statute.6

This analysis neither “disaggregate[s]” nor “generalize[s]”

the steps taken in an investigation, nor does it require holding

that “every question asked and answered” is an “action” on a

“matter.” Court Op. at 13, 14. If Valdes had been ordered by a

superior officer to make the WALES inquiries he did, no one

would doubt that he was conducting an “investigation.” But if

Valdes’ conduct would constitute an official act under those

circumstances, then the fact that he acted in response to an

outsider’s request rather than an instruction from a supervisor

cannot save him: “official act” is defined in terms of a “decision

or action,” regardless of who requests it, and the statute only

requires that the “decision or action” be on a “question [or]

matter” that “may at any time be pending, or [that] may by law

be brought before” him in his official capacity. 18 U.S.C. §

201(a)(3) (emphasis added). Moreover, no one -- neither the

defendant nor the court -- disputes that an officer would be

liable under section 201 if he accepted money as a reward for

not running a WALES search on a driver’s license during a

traffic stop. See Oral Arg. Tr. at 12-13; Court Op. at 13.7

The court suggests that another flaw in the government’s

case is that Valdes’ investigation did not involve “activity in the

real world,” that it was “imaginary,” and that it was “a pure

6

Moreover, the only reason that Valdes’ conduct ended when it

did was that the government arrested him. Valdes had shown no

indication that he was unwilling to continue to conduct requested

WALES searches -- or take other investigatory steps -- indefinitely.

7

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

(upholding an MPD officer’s guilty plea for accepting an illegal

gratuity for not reporting illegal activity).

10

fiction.” Court Op. at 14, 19. In one sense that is, of course,

true. The case involved an undercover “sting” operation in

which each of the players -- other than the defendant -- was

indeed fictitious. But such operations are a staple of bribery

prosecutions,8 and the court takes pains to assure us that its

decision will have “no effect on law enforcement’s ability to

conduct ‘sting’ operations,” and that the fact that the case

involved a sting is irrelevant to its analysis. Court Op. at 15.

Once the fact that the case involved a sting is removed from

the equation, however, it is unclear what the court means when

it says that “Valdes’s queries belonged to no . . . active or

incipient police investigation,” id. at 14, that they did not

amount to “some sort of government investigation,” id., and that

the issue was “linked only by pure supposition to an imaginary

future matter,” id. at 19. The court does not attempt to define

what would constitute an “investigation,” saying only that the

matter must be “at least nascent” and “the underlying issue

[must have] surfaced to some degree.” Id. at 19. But the matter

before Valdes was more than nascent and had already surfaced.

His conduct was not linked to an “imaginary future”

investigation; it was itself an actual investigation. Valdes

conducted a background investigation on five individuals. This

was a matter that Blake actually “brought before” Valdes, that

was “pending” before him in the present, and upon which he

“act[ed]” in the present tense. 18 U.S.C. § 201(a)(3). With

respect, it is the court and not the dissent that does “not define

8

See, e.g., United States v. Washington, 106 F.3d 983 (D.C. Cir.

1997) (bribe to police officer to provide “protection” for a fictitious

drug dealer); United States v. Neville, 82 F.3d 1101 (D.C. Cir. 1996)

(bribe to jail guard from a fictitious drug dealer); United States v.

Kelly, 748 F.2d 691 (D.C. Cir. 1984) (“Abscam” case, involving bribe

to congressman to introduce private immigration bill for fictitious

alien).

11

the outer bounds of [its] theory.” Court Op. at 14; see id. at 19

(“Exactly how developed an issue must be before it qualifies as

possibly pending or able to be brought by law is something we

need not decide.”).

In a related vein, the court argues that “the scenario

presented to Valdes gave neither him, nor any other police

officer, any reason for official investigation of the individuals

for whom Blake sought license number or warrant information.”

Id. at 19. But once the sting is removed from the scenario, it is

clear that the reason there was no “reason” is that Valdes would

not have investigated the license number holders but for Blake’s

unlawful request. Removing such a case from the definition of

“official act,” however, strikes at the core of bribery

prosecutions under subsection 201(b)(2)(A), which punishes

public officials who take official acts that they would have no

reason to take but for being influenced by the payment of a

bribe. If the court’s argument were correct, successful bribery

prosecutions under that provision -- which depend upon the

same definition of “official act” as gratuity prosecutions --

would not be possible.

2. Nor is there any doubt that the investigation undertaken

by Valdes was a police investigation -- that is, an investigation

undertaken by Valdes in his “official capacity.” 18 U.S.C. §

201(a)(3). At one point in its opinion, the court alludes to the

practice of “moonlighting,” see Court Op. at 11, a word of

multiple connotations, not all of which are benign.9 But Valdes

did not undertake his efforts for Blake outside the scope of his

9

Compare Oxford English Dictionary Online,

http://www.oed.com (defining “moonlighting” as “[t]he practice of

doing paid work in addition to one’s regular employment”), with id.

(alternatively defining the term as “[t]he performance of an illicit

action by night”).

12

official employment. He did not merely “parallel[]” his “regular

work,” Court Op. at 14, by running down license plates and

warrants during his off hours, traveling to multiple motor

vehicles departments or courthouses to learn the information as

a member of the general public would have to do. Instead, he

conducted the searches on his police computer by accessing

WALES, a database that he knew full well could be used only

for official business. See J.E.A. 87 (Valdes’ personal

acknowledgment, on a WALES training questionnaire, that the

“[u]se of the WALES and NCIC systems is for criminal Justice

purpose[s],” and that “[i]mproper use or dissemination of

information contained within these systems could result in,”

inter alia, criminal prosecution); J.E.A. 111 (recording of Valdes

telling Blake that he could only run one search at a time “’cause

they monitor this stuff”); sources cited supra note 1 (regulations

restricting WALES to “official legitimate law enforcement

purposes only” and warning MPD employees to “take

extraordinary precautions to ensure that this information is not

observable to unauthorized persons”). Indeed, a tape of a

telephone call makes clear that Valdes spoke to Blake from the

police department, while he was in the process of entering the

license plate numbers into the computer (the clicks are audible).

J.E.A. 127.

Moreover, the steps taken by Detective Valdes are not only

the kinds of investigative steps that police officers legally take;

they are also the kinds of investigations that criminals have paid

police officers to take for their own illegal purposes. A drug

crew may want to know, for example, whether cars that cruise

its neighborhood belong to rival gang members -- or to

undercover officers.10 Its leaders may want to learn the home

10

See, e.g., United States v. Sedoma, 332 F.3d 20, 27-28 (1st Cir.

2003); United States v. Herrera, No. 04-10665, 2006 WL 684432, at

*1 (5th Cir. Mar. 17, 2006).

13

addresses or identities of witnesses who could testify against

them at a trial or before a grand jury.11 They may want to know

whether they or their associates have outstanding warrants.12

And a gang interested in identity theft may simply want the

names, addresses, Social Security numbers, and other personal

identifiers that WALES and similar law enforcement databases

hold. See supra note 2 (listing personal data contained in

WALES and associated databases). Although it turns out that

none of these were the motives of the “judge” in this case,

Valdes could not have known that. And in any event, the

corruptness of the payor’s or payee’s motive is not an element

of the gratuity offense. See Sun-Diamond, 526 U.S. at 404-05.

3. Finally, I note the defendant’s argument that his WALES

searches cannot constitute an investigation because they yielded

only publicly available information. The court does not adopt

that argument, and rightly so. The argument fails for three

reasons.

First, nothing in the statutory language requires that an

“official act” involve information that is not otherwise publicly

available. And, in fact, many police investigations involve what

might be called “public source” information: the observation of

cars on public streets, the surveillance of suspects in public

places, the inspection of trash cans at the curb, and the

questioning of neighbors and other witnesses. Although all

these things can be done by private investigators, they are within

the scope of section 201 when done by the police.

11

See, e.g., Sedoma, 332 F.3d at 22, 27; Gordon v. Borough of

Middlesex, 632 A.2d 1276, 1278 (N.J. Super. Ct. App. Div. 1993).

12

See, e.g., Herrera, 2006 WL 684432, at *1; United States v.

Ruiz, 905 F.2d 499, 502 (1st Cir. 1990).

14

Second, it is not at all certain that the information Blake

gave Valdes was publicly available. Although Valdes contends

that a private investigator could have obtained the home

addresses of the license plate holders by going to Virginia’s

Department of Motor Vehicles, a federal statute suggests

otherwise. See 18 U.S.C. § 2721 (limiting disclosure of personal

information, such as drivers’ addresses, contained in state motor

vehicle records).13

Third, the information that Valdes disclosed was in fact

“confidential” in a much more important sense. Valdes did not

just advise Blake of the home addresses and warrant status of

certain individuals: he told him what the government’s files held

on those subjects. See, e.g., J.E.A. 127 (recording of Valdes

notifying Blake that, “[a]ccording to the NCIC check, nothing

comes back” with respect to the outstanding warrant (emphasis

added)). That information is not available to an ordinary citizen

or private investigator because WALES is accessible only to law

enforcement officers on official business. See sources cited

supra note 1. And knowing what the government’s files say has

a value of its own, beyond the mere efficiency of information

acquisition. When a police officer stops a car in the District of

Columbia, he can check the driver’s status by accessing

WALES; he cannot, however, drive down to Virginia or up to

New York to check public records. For $450, Blake learned not

just whether his “friend” had a warrant, but whether WALES

13

Valdes contends that, because Blake said the holders owed him

money, the data would have been available under a statutory exception

for use “in anticipation of litigation.” 18 U.S.C. § 2721(b)(4). But

Blake did not mention litigation, and courts have read the exception

narrowly. See, e.g., Wemhoff v. District of Columbia, 887 A.2d 1004,

1011 (D.C. 2005) (holding that subsection (b)(4) can be invoked only

when there is a bona fide investigation relating to actual or “likely”

litigation).

15

would show that he had a warrant. Had Blake been a drug

dealer in the District, this would have been uniquely valuable

information: knowing that WALES did not show his “friend”

was wanted would make that friend a better bet as a drug

courier, since he would be less likely to be arrested and searched

after a traffic stop.

In sum, there is no ground for excluding Valdes’

investigation from the scope of the gratuity offense.

B

The court asserts that two precedents compel its conclusion

that Valdes’ conduct falls outside the coverage of subsection

201(c). Neither, however, supports that result.

1. In United States v. Sun-Diamond Growers, the Supreme

Court reversed a trade association’s conviction under subsection

201(c)(1)(A) for giving Agriculture Secretary Michael Espy

illegal gratuities (including sports tickets, luggage, and meals).

The trial judge had charged the jury that it could find the

association guilty if it “provided Espy with unauthorized

compensation simply because he held public office,” and that

the “government need not prove that the alleged gratuity was

linked to a specific or identifiable official act or any act at all.”

526 U.S. at 403. The Court held that the statutory phrase, “for

or because of any official act performed or to be performed,”

means “for or because of some particular official act” and not

“for or because of official acts in general.” Id. at 406. Were

that not the case, the Court said, the statute “would criminalize,

for example, token gifts” given to officials “based on [their]

official position[s] and not linked to any identifiable act.” Id. at

406-07. These could include, the Court suggested, a sports

jersey given to the President by an athletic team during a White

House visit, a school cap given to the Education Secretary on the

16

occasion of his visit to a high school, or a complimentary lunch

for the Agriculture Secretary in conjunction with his speech to

a group of farmers. Id. Requiring the government to prove an

identifiable act, the Court said, would prevent such results.

In dictum, the Sun-Diamond Court worried that an

“identifiable act” requirement might still not wholly solve the

problem, because such gifts could “be regarded as having been

conferred, not only because of the official’s position as President

or Secretary,” but also “for or because of” the official acts of

receiving the sports team, visiting the high school, or speaking

to the farmers. Id. at 407. “The answer to this objection,” the

Court said, is that those actions “are not ‘official acts’ within the

meaning of the statute,” which “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 official, in such

official’s official capacity, or in such official’s place of trust or

profit.’” Id. (quoting 18 U.S.C. § 201(a)(3)).

Nothing in either Sun-Diamond’s holding (that an illegal

gratuity conviction requires a connection between the gratuity

and an identifiable act) or its dictum (that activities such as

receiving a sports team, visiting a high school, or speaking to

farmers do not constitute “official acts” within the meaning of

the statute) precludes our finding sufficient evidence to support

Valdes’ conviction. There is certainly “music” in Sun-Diamond

that reflects a desire to rein in the broad language of section 201

(though there is contrapuntal music in United States v. Birdsall,

233 U.S. 223, 230 (1914), as Judge Henderson has pointed out,

see Valdes, 437 F.3d at 1284, 1287 n.10 (Henderson, J.,

dissenting)). The Supreme Court’s preference for interpreting

the statute as a “scalpel” rather than a “meat axe,” cited in this

court’s opinion in the instant case, is one such melody. Sun-

Diamond, 526 U.S. at 412, quoted in Court Op. at 8. But Sun-

17

Diamond did not suggest that such narrowing should be

accomplished arbitrarily. Rather, as the Supreme Court said

expressly, the way to appropriately accomplish that end is to

require that the official’s action fall within the statutory

definition of “official act.” “[W]hen the violation is linked to a

particular ‘official act,’” the Court said, “it is possible to

eliminate the absurdities through the definition of that term.”

526 U.S. at 408 (emphasis in original).

While it may be absurd to describe receiving a sports team

or visiting a high school as an official act, there is no dispute

that a police investigation can fairly be described in that way.

Because the initiation of such an investigation is a “decision or

action” on a “question [or] matter” that may “be pending, or . .

. by law be brought before” a police detective in his “official

capacity,” the statutory “definition of th[e] term” “official act”

eliminates any argument that Valdes’ conduct falls outside the

scope of section 201(c). Hence, affirming his conviction would

be faithful to both the words and the music of the Sun-Diamond

opinion.

2. The other precedent cited by the court is our own

decision in United States v. Muntain, 610 F.2d 964 (D.C. Cir.

1979). The defendant in that case was a Department of Housing

and Urban Development (HUD) official, who was convicted of

accepting illegal gratuities for assisting his alleged co-

conspirators in marketing private automobile insurance to labor

unions. That assistance involved both Muntain’s personal acts

and his efforts to get his HUD subordinates to help him. As the

court explained in reversing Muntain’s conviction, the problem

with the government’s case was the absence of evidence

suggesting “that automobile insurance as a benefit for labor

unions fell within HUD’s jurisdiction.” Id. at 966. Because

“promot[ing] group automobile insurance” did not “involv[e] a

subject which could be brought before Muntain or, for that

18

matter, anyone else at HUD in an official capacity, [there was]

no apparent danger that the receipt of gratuities . . . in

connection with the group automobile insurance scheme would

induce Muntain to act improperly in deciding a HUD-related

matter.” Id. at 968. The “determinative factor,” we held, was

“whether Muntain’s actions” -- both personally and in directing

his subordinates -- “involved a matter or issue that could

properly, by law, be brought before him as an Assistant to the

Secretary” of HUD. Id. at 969. “Since the promotion of group

automobile insurance was not such a matter,” we concluded

“that no official act occurred and, hence, 18 U.S.C. § 201[(c)]

cannot be invoked.” Id.

Muntain reflects an important statutory limitation on the

scope of the gratuity provision: the action at issue must involve

a question or matter “which may at any time be pending, or

which may by law be brought before” the defendant in his

“official capacity.” 18 U.S.C. § 201(a)(3). That limitation is

satisfied here. Valdes was a police detective, and the kind of

matter involved in this case -- a police investigation --

unquestionably could have been pending or brought before him

in his official capacity. Accordingly, neither Muntain nor any

other case supports the result that the court reaches today.

III

My conclusion that there was sufficient evidence for a

reasonable jury to find that Valdes’ conduct constituted an

investigation, and hence an official act, is sufficient to end my

analysis of this issue. See Jackson v. Virginia, 443 U.S. 307,

319 (1979) (holding that evidence is sufficient to sustain a

verdict if “any rational trier of fact could have found the

19

essential elements of the crime beyond a reasonable doubt”).14

The court, by contrast, must go further. Because it concludes

that Valdes’ conduct did not constitute an investigation, it must

go on to consider whether that conduct -- viewed simply as an

information disclosure -- nonetheless falls within the compass

of “official act.” Although I do not need to decide that question,

I am compelled to address troubling aspects of the court’s

analysis.

A

According to the court, “[e]xcept in limited circumstances”

like those involving formal procedures established by the

Freedom of Information Act (FOIA), “we do not believe that a

release of information can constitute a ‘decision or action on any

question, matter, cause, suit, proceeding, or controversy.’”

Court Op. at 20 (quoting 18 U.S.C. § 201(a)(3)); see id. at 20-

21.15 Hence, under the court’s interpretation, if a drug dealer

were to reward Valdes for providing him with the names, home

addresses, and Social Security numbers of government

witnesses, taking (or giving) the money would not constitute an

unlawful gratuity -- unless the dealer also filed a FOIA request.

The same would be true if an identity thief (or a commercial

enterprise seeking to augment its customer list16) paid Valdes for

14

I address the separate issue of the erroneous jury instruction in

Part IV.

15

See also Court Op. at 15 (“Even if Blake had sought license

plate and warrant information about real people, that fact would not

have transformed his five questions, or Valdes’s answers, or both, into

. . . any . . . kind of ‘matter,’ etc., covered by § 201(a)(3).”)

16

Cf. Parks v. United States, 355 F.2d 167, 169 (5th Cir. 1965)

(affirming bribery conviction for influencing an Air Force sergeant “to

sell the names of the recruits which were in his custody and control”

20

providing such information. The same would be true if Valdes

were paid for running DNA or fingerprint checks. And the

same would be true if a drug company, rather than a drug dealer,

rewarded an FDA scientist for disclosing confidential

information about the agency’s plans for approving the

company’s drugs.

The court consoles us with the possibility that, under such

circumstances, Valdes’ information disclosure might violate one

of an array of specific non-disclosure statutes. (It would not,

however, violate the drug laws if Valdes did not know why the

drug dealer wanted the information.) In fact, it is not at all clear

that any of the criminal statutes cited by the court, see Court Op.

at 11, 21, would apply to Valdes’ situation; and it is extremely

doubtful that any would apply to the private citizen who paid

him the money. But even if a non-disclosure statute did apply,

the court correctly concedes that the possibility that Valdes

violated another statute “implies nothing direct about his

culpability under § 201.” Id. at 11. Congress may well -- and

often does -- proscribe the same conduct in multiple statutes.

See United States v. Williams, 216 F.3d 1099, 1102 (D.C. Cir.

2000) (“It is not uncommon for laws to be cumulative.”). And

it would be neither troubling nor surprising if section 201

punished the disclosure of information for pay more severely

than other laws punished the mere disclosure alone. Disclosing

information for pay adds a level of venality that the legislature

is certainly warranted in punishing with greater severity.

The court also consoles us with the possibility that, if

Valdes took money offered to induce him to provide

confidential information, that “might qualify as [an act] ‘in

violation of the official duty’” of a public official. Court Op. at

21. If it did so qualify, Valdes’ conduct might violate a different

to a life insurance salesman).

21

subsection of the bribery statute, subsection 201(b)(2)(C), which

punishes a public official for corruptly accepting payment in

return for “being induced to do . . . any act in violation of [his]

official duty.” That possibility is not much consolation.

First, this circuit has never had occasion to construe the

meaning of “official duty” under subsection 201(b)(2)(C), let

alone to explain how it differs from the meaning of “official act”

under subsection 201(b)(2)(A).17 Nor are the varying

explanations offered by other circuits particularly helpful.18 The

court thus holds out the possibility of a bribery prosecution

17

In relevant part, subsection 201(b)(2) states that whoever,

being a public official . . . directly or indirectly, corruptly

. . . accepts . . . anything of value . . . in return for: (A)

being influenced in the performance of any official act; .

. . [or] (C) being induced to do or to omit to do any act in

violation of the official duty of such official or person; . .

. shall be fined . . . or imprisoned . . . or both. . . .

18 U.S.C. § 201(b)(2) (emphasis added).

18

Indeed, the principal case cited by the court, Parks v. United

States, 355 F.2d at 168-69, holds that both the “official duty” and the

“official act” provisions cover the case of an Air Force sergeant who

sells the names of new recruits to an insurance salesman -- a view of

the statute that is directly contrary to that taken by the court today.

See also United States v. Parker, 133 F.3d 322, 325-26 (5th Cir. 1998)

(interpreting “[a]cts that violate an official’s duty” as a subset of

“official act[s]”); United States v. Alfisi, 308 F.3d 144, 151 n.3 (2d

Cir. 2002) (“Subsections (A) and (C) undoubtedly overlap in some

considerable measure, although resort to (A) seems most appropriate

in the case of bribes regarding decisions involving the exercise of

judgment or discretion, . . . while use of (C) would be most

appropriate in the case of bribes to induce actions that directly violate

a specific duty.”).

22

under a subsection of uncertain meaning, while eliminating the

possibility of such a prosecution under subsection

201(b)(2)(A).19 The court’s analysis eliminates the latter

possibility because, if it is not a gratuity in violation of

subsection 201(c)(1)(B) for Valdes to accept money from a drug

dealer “for or because” he conducted the WALES searches, it

cannot be bribery in violation of subsection 201(b)(2)(A) even

if that money “influence[s]” him to conduct those searches.

That is so because both subsections 201(c)(1)(B) and (b)(2)(A)

require an “official act,” and because both rely on the same

definition of that term. See 18 U.S.C. § 201(a)(3). Indeed, on

the court’s analysis, it cannot even be bribery under section

201(b)(1)(A) for the drug dealer to pay to influence the

detective to conduct such searches.

Second, the principal problem with the court’s decision is

not that it will permit criminals to bribe our public officials, but

that it will permit them to reward those officials. Even if the

“official duty” subsection of the bribery statute (§ 201(b)(2)(C))

does apply to a payment intended to induce disclosure of

confidential government information, that subsection (unlike §

201(b)(2)(A)) has no parallel in the gratuities subsection (§

201(c)(1)). Hence, if a public official is paid cash as an after-

the-fact “reward” -- not as an “inducement” -- for disclosing

confidential information, the payment is not unlawful under the

court’s analysis. See Sun-Diamond, 526 U.S. at 404-05

19

See, e.g., United States v. Sutton, 801 F.2d 1346 (D.C. Cir.

1986) (conviction under “official act” prong of bribery statute based

in part on payment for disclosure of confidential information

regarding Department of Energy settlement negotiations); Parks, 355

F.2d at 169 (upholding bribery conviction for paying an Air Force

sergeant to sell names of new recruits, because the payment was made

“with intent to influence his . . . action on any . . . matter . . . pending

. . . before him” (omissions in original)).

23

(explaining that “for bribery there must be a quid pro quo,”

while an “illegal gratuity . . . may constitute merely a reward for

some future act . . . or for a past act that [the official] has already

taken”). That is true for all of the “rewards” described above --

ranging from one paid to a detective by an identity thief or drug

dealer, to one paid to an FDA scientist by a drug company.

Although the court is correct in noting that the bribery

provision covers more “predicate acts” than the gratuity

provision, it has no warrant for concluding that applying the

latter to Valdes’ conduct would disturb a “kind of balance”

chosen by Congress. Court Op. at 16; see id. at 16-18. There is

certainly nothing in the legislative history to suggest that

Congress intended the gratuity predicate to be so narrow as to

exclude conduct like that of Valdes, or like that of the identity

thief, drug dealer, or drug company noted above. Although the

court is correct in saying that it “is the corruption of official

decisions through the misuse of influence in governmental

decision-making which the bribery statute makes criminal,” id.

at 10 (quoting Muntain, 610 F.2d at 968 (emphasis added)), the

gratuity provision reaches further to prevent the creeping

corruption that may arise as the result of giving or receiving

rewards for official acts. As the House Report accompanying

the passage of the current statute explained, the “conduct which

is forbidden” by the gratuity provision “has the appearance of

evil and the capacity of serving as a cover for evil.” H.R. Rep.

No. 87-748, at 19 (1961). Defining that provision so narrowly

as to preclude prosecution of information disclosure except in

FOIA cases contravenes congressional intent and eliminates an

important tool routinely used by prosecutors to fight public

corruption.20

20

See, e.g., United States v. Gaines, Nos. 92-5446, 92-5501, 1993

WL 220206 (4th Cir. June 23, 1993) (illegal gratuities conviction, in

which the official acts were the supplying of “confidential, sensitive,

24

Third, the court’s disposition of this question does public

officials no favor. Because the court’s opinion makes it

impossible for a prosecutor to charge, or the jury to settle upon,

a lesser included offense for conduct that most people would

consider criminal, it makes it more likely that those who

undertake such conduct will be charged with and convicted of

the greater offense of bribery.21 Indeed, Valdes -- who the jury

acquitted of the greater offense but convicted of the lesser --

may well have been the beneficiary of such a resolution, the

possibility of which the court now takes off the table.

B

There is nothing in the plain language of subsection

201(a)(3)’s definition of official act that precludes it from

encompassing the disclosure of an agency’s -- or the nation’s --

and classified” Navy information to defense contractors); United

States v. Greenberg, 444 F.2d 369 (2d Cir. 1971) (illegal gratuity

conviction in a sting operation, where the official act was providing

information concerning an IRS investigation); United States v.

Viviano, 437 F.2d 295 (2d Cir. 1971) (conviction in a sting operation

for offering a gratuity for confidential information from IRS files).

21

See Keeble v. United States, 412 U.S. 205, 212-13 (1973) (“[I]t

is no answer to petitioner’s demand for a jury instruction on a lesser

offense to argue that a defendant may be better off without such an

instruction. True, if the prosecution has not established beyond a

reasonable doubt every element of the offense charged, and if no

lesser offense instruction is offered, the jury must, as a theoretical

matter, return a verdict of acquittal. But a defendant is entitled to a

lesser offense instruction . . . precisely because he should not be

exposed to the substantial risk that the jury’s practice will diverge

from theory. Where one of the elements of the offense charged

remains in doubt, but the defendant is plainly guilty of some offense,

the jury is likely to resolve its doubts in favor of conviction.”).

25

secrets for pay. Whether to disclose such information can

reasonably be viewed as a “decision or action” on a “question

[or] matter” that “may by law be brought before any public

official, in such official’s official capacity.” The court rightly

warns that “every question-and-answer between an official and

a citizen can[not] be brought within the statute.” Court Op. at

21. I certainly agree that the term “question” does not

encompass any sentence that ends in a question mark. Instead,

as Muntain indicates, the types of “questions” covered by

section 201 are those that may be “pending” or “may by law be

brought before” the defendant public official. See 610 F.2d at

969. But there is no reason why we must conclude that Valdes’

conduct in this case did not constitute an action on just such a

“question.” To find Valdes’ conduct covered by the statute is

not to work a “[j]udicial extension” of the congressional text,

Court Op. at 18; rather, the court’s contrary holding effects a

judicial contraction.

The court reaches this result because, in my view, it

misconstrues the “question” that is actually at issue in Valdes’

case. The “question” is not, as the court suggests in referring to

Blake’s request for the name of the license holder: “What is

your name?” or “Where do you live?” Court Op. at 9, 12.

Rather, the question is: “What do the government’s files show is

the name and address?” That is a question that was “pending”

and “brought before [a] public official,” namely Valdes. And

because access to WALES is restricted to law enforcement

personnel, it is a question that Valdes could answer only in his

“official capacity, or in [his] place of trust or profit.” In the

court’s own formulation, that question -- What do the

government’s files show? -- is a “[q]uestion[] . . . subject to

resolution by the government.” Court Op. at 9. Indeed, just as

“‘Should the police investigate this person?’ . . . is clearly a

question answered by the government,” id. at 13, so too is

26

“Should the police disclose the contents of law enforcement

computer files?”

None of this conflicts with the dictum of Sun-Diamond. As

discussed in Part II.B.1 above, that dictum was aimed, as the

Court itself said, at preventing absurdities from becoming

gratuities -- absurdities like the gift of a jersey for receiving a

sports team at the White House, or the gift of a cap for visiting

a high school. But there is nothing absurd about barring a

government official from taking cash as a reward for disclosing

the contents of restricted files. We should not, and we need not,

foreclose the prosecution of such behavior by the manner in

which we decide this case.

IV

Finally, I agree with my colleagues that the district judge’s

jury instruction on the definition of “official act” was error.

Court Op. at 12-13. The judge refused the defendant’s request

to include the statutory definition set out in subsection 201(a)(3),

and instead instructed the jury that “the term official act means

any decision or action within the scope of the public official’s

authority.” J.A. 721. That refusal conflicts with Sun-Diamond’s

directive to focus on “the definition of [official act],” 526 U.S.

at 408 (emphasis in original), and the court is right in holding

that the government cannot satisfy its burden of showing that the

error was harmless, Court Op. at 13; cf. Sun-Diamond, 526 U.S.

at 412-14 (rejecting a claim that an erroneous jury instruction

concerning the scope of subsection 201(c) was harmless).

But my colleagues’ conclusion that the jury instruction was

error is without consequence to their analysis. Because they

hold that no reasonable jury could have found Valdes’ conduct

to constitute an official act, no jury instruction could have saved

the conviction, and the case against him must be dismissed. For

27

me, by contrast, the error is of consequence. Because it was not

harmless, the judgment must be reversed. But because I regard

the evidence as sufficient for a properly instructed jury to

convict Valdes of accepting an illegal gratuity, I would remand

the case for a new trial.

V

In a well-intentioned effort to avoid reading section 201 so

broadly as to include the absurdities described in the Sun-

Diamond dictum, the court has denied the government an

important weapon in fighting official corruption. It is one thing

to interpret section 201 as a “scalpel” rather than a “meat axe.”

Court Op. at 8 (quoting Sun-Diamond, 526 U.S. at 412). It is

quite another to turn the scalpel on the statute itself. Because

today’s decision has that unintended consequence, I respectfully

dissent.