Valdes v. U.S.

• Citation: 475 F.3d 1319
• Decision Date: 09 February 2007
• Docket Number: No. 03-3066.,03-3066.
• Parties: Nelson VALDES, Appellant v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

475 F.3d 1319

Nelson VALDES, Appellant v. UNITED STATES of America, Appellee.

No. 03-3066.

United States Court of Appeals, District of Columbia Circuit.

Argued September 28, 2006.

Decided February 9, 2007.

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 the Campaign Legal Center in support of appellee.

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.

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 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 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

[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, 34 S.Ct. 512, 58 L.Ed. 930 (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 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, 34 S.Ct. 512, 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...