U.S. v. Valdes

• Citation: 437 F.3d 1276
• Decision Date: 24 February 2006
• Docket Number: No. 03-3066.,03-3066.
• Parties: UNITED STATES of America, Appellee v. Nelson VALDES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

437 F.3d 1276

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

No. 03-3066.

United States Court of Appeals, District of Columbia Circuit.

Argued November 1, 2005.

Decided February 24, 2006.

Appeal from the United States District Court for the District of Columbia (No. 01cr00154-01).

Paul H. Zukerberg argued the cause and filed the briefs for appellant.

Lisa H. Schertler, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III and J. Patrick Rowan, Assistant U.S. Attorneys.

Before: HENDERSON, Circuit Judge, and EDWARDS^* and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Dissenting Opinion filed by Circuit Judge HENDERSON.

STEPHEN F. WILLIAMS, Senior Circuit Judge.

An FBI informant working undercover gave cash to Nelson Valdes, then a detective with the D.C. Metropolitan Police Department ("MPD"), apparently as a reward for Valdes's searching several police data bases to supply information. (Save for information about the non-existence of an arrest warrant for a fictitious person, the information was, according to uncontradicted testimony, publicly available. Joint Appendix ("J.A.") 659-61, 663-64.) Valdes was convicted under 18 U.S.C. § 201(c)(1)(B) of three counts of receipt of illegal gratuities "for or because of an[] official act." Valdes argues that the statute is far less sweeping than the government successfully claimed in district court, and that under a proper construction the government's evidence was insufficient. He makes a number of other claims, including attacks on two related aspects of the jury instruction and an argument that he was entitled to acquittal as a matter of law on grounds of entrapment. We agree with Valdes that the district court's interpretation of the statute was error and that the government failed to show that the acts for which Valdes received compensation were official acts within the meaning of § 201. We therefore reverse the conviction without reaching Valdes's other claims.

* * *

On the evening of February 17, 2001, William Blake, working as an undercover informant for the FBI, went on assignment to a Washington nightclub called "1223" (located at 1223 Connecticut Avenue, NW). At "1223" Blake was introduced to Valdes as a judge, and Valdes in turn identified himself as an MPD detective. The two met again at "1223" a week later, on which occasion Valdes gave Blake his business card with his cell phone number, saying it was "just in case [Blake] ever needed a favor."

On March 17, an FBI agent instructed Blake to see if Valdes would provide him with police information. Accordingly, the FBI entered into state computer data bases the names of five fictitious individuals, along with fictitious addresses and license plate numbers. J.A. 361-A-B, 365-67, 371-72. That evening, again at "1223," Blake asked Valdes if he could do him a "favor" of looking up the license plate numbers of some individuals that Blake said owed him money, presumably to track down their contact information. Valdes indicated that it would be "no problem" and told Blake to call him on his cell phone to get the information. On leaving, Blake handed Valdes a $50 bill; no testimony describes the accompanying conversation if any. Four days later, Blake called Valdes, introducing himself as "the judge," reiterated his earlier request and provided Valdes with the first license plate number. Valdes then obtained the name and address of the license holder through a query to the Washington Area Law Enforcement System ("WALES"), a computer data base linked to state data bases. When Blake called back later, Valdes provided him with the name and address. After expressing satisfaction with the information, Blake asked Valdes, "How much [do] I owe you for this?" and Valdes responded, "Just a thank-you."

Two days later, on March 23, Blake called Valdes again and asked him to run a second license plate query, which Valdes agreed to do. Blake proposed that they meet the next day in person; as Blake testified by way of explanation, a meeting would enable him to offer Valdes money: "I couldn't push [money] through the phone." The FBI equipped Blake for the meeting with a gold Rolex and Mercedes-Benz automobile with audio and video recorders it is unclear what the handlers' purpose was in outfitting the phony judge with a Rolex and Mercedes. Blake and Valdes arranged to meet at a local gas station, where Blake paid Valdes $200 and asked him to run a third license plate. Valdes provided Blake with the names and addresses for the second and third plates that evening over the phone, again having obtained the information via WALES.

On March 30, Blake asked Valdes to run a fourth license plate. The two agreed to meet the next day at the same gas station; there, Blake paid Valdes $100 upon receiving the fourth name and address, again obtained via WALES. Blake also asked Valdes to check whether a friend of Blake's "ha[d] a warrant," handing Valdes an additional $100 to "give you a little more incentive." Valdes again used WALES and that night told Blake that there was no warrant out on the person.

Valdes was indicted on three counts of bribery, in violation of 18 U.S.C. § 201(b)(2)(A) and (C). A jury convicted him of three counts of the lesser-included offense of receipt of an illegal gratuity, in violation of 18 U.S.C. § 201(c)(1)(B).

* * *

We review the sufficiency of the evidence de novo, considering it in the light most favorable to the government, to determine whether any rational trier of fact could have found Valdes guilty beyond a reasonable doubt of all required elements of the crime. See United States v. Schaffer, 183 F.3d 833, 839-40 (D.C.Cir.1999).

The anti-gratuity statute provides that: Whoever . . . being a public official . . . otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official . . . shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(1)(B) (emphasis added). An "official act" is defined for these purposes as

any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . .

18 U.S.C. § 201(a)(3). Unlike most of § 201's anti-bribery provisions, the anti-gratuity provision has no requirement that the payment actually "influence[] . . . the performance" of an official act. Compare, e.g., 18 U.S.C. § 201(b)(2)(A).

Valdes argues that logging onto the WALES system to retrieve public information does not constitute a "decision or action" and that there was no "question, matter, cause, suit, proceeding or controversy" regarding any of the individuals that was or could be pending before Valdes. He relies primarily on United States v. Muntain, 610 F.2d 964 (D.C.Cir. 1979), where we found that the defendant Muntain, an Assistant to the Secretary for Labor Relations at the Department of Housing and Urban Development ("HUD"), had not accepted illegal gratuities for an official act when he was compensated by private persons for selling private auto insurance schemes to labor unions with whose leaders he also dealt on official HUD business. We rejected the government's argument that official acts "encompass any acts within the range of an official's public duties," which the government argued included Muntain's meetings with labor union officials. Id. at 967. As the promotion of group auto insurance was not a matter that "could be brought before Muntain—or, for that matter, anyone else at HUD—in an official capacity," there was no danger that the gratuities received could have induced Muntain "to act improperly in deciding a HUD-related matter." Id. at 968.

The government tries to distinguish Muntain on the basis that it involved private auto insurance schemes, whereas (it argues) WALES queries inherently relate to the official duty of conducting police investigations. But the Muntain court plainly didn't share the government's present view of the public/private divide. Muntain used government resources in contacting possible labor union insurance purchasers, combining trips on government business with insurance promotion. Id. at 967-68. Further, besides conducting such meetings, Muntain had, as the government stressed in an alternative argument, wielded his supervisory authority to direct HUD subordinates to assist him in promoting insurance. Id. at 969. Thus Muntain deployed government resources (travel opportunities and workforce), just as did Valdes (the WALES database). But in Muntain we clearly rejected the idea that such a use of government resources was in itself an "official act" within the meaning of § 201(a)(3).

The government's concept of "official act" is striking in its complete failure to address the statutory clause modifying "decision or action," namely, "on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official." The words are far from self-defining, but they suggest at least a rudimentary degree of formality, such as would be associated with a decision or action directly related to an adjudication, a license issuance (or withdrawal or modification), an investigation, a procurement, or a policy adoption. Easily included, of course, would be a clerk's manufacture of official government approval of Supplemental Security Income benefits, as in United States v. Parker, 133 F.3d 322 (5th Cir.1998); compare Dissent at 6 n. 3, or an official's "ignoring garbage violations and parking...