United States v. Nathan Van Buren

940 F.3d 1192

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 10, 2019
• Docket: 18-12024
• Status: Published

Opinion

Case: 18-12024 Date Filed: 10/10/2019 Page: 1 of 34

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12024 ________________________

D.C. Docket No. 1:16-cr-00243-ODE-JFK-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NATHAN VAN BUREN,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

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Before MARTIN, ROSENBAUM, and BOGGS,∗ Circuit Judges.

ROSENBAUM, Circuit Judge:

Perhaps Dudley Field Malone said it best when he opined, “One good

analogy is worth three hours’ discussion.”1 Or in this case, 15 pages of discussion.

See infra at pp. 9–23.

Take, for example, this case.

“[A] lawsuit before a court” is a pretty big deal to most people. But a

generic “question” or “matter,” in common usage, maybe not so much.

That impression may change, though, if we clarify what we mean by

“question” or “matter” in a specific context by analogizing to something else. So if

we say that, for our purposes, to qualify as a “question” or a “matter,” the question

or matter must be of the same significance or scope as “a lawsuit before a court,” a

person would understand that we are not talking about just any old question or

∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 1 Richard Nordquist, The Value of Analogies in Writing and Speech, ThoughtCo., https://www.thoughtco.com/what-is-an-analogy-1691878 (last visited Oct. 8, 2019). Along with Clarence Darrow, Dudley Field Malone defended John Scopes in the 1925 “Scopes Trial,” formally known as State v. Scopes. Scopes Trial, Encyclopaedia Britannica, https://www. britannica.com/event/Scopes-Trial (last visited Oct. 8, 2019) (“Scopes Trial”); Malone’s Trial Speech (Full Text), Historical Thinking Matters, http://historicalthinkingmatters.org/scopestrial/ 1/sources/44/fulltext/ (last visited Oct. 8, 2019) (“Malone’s Trial Speech”). In that case, Tennessee, led by William Jennings Bryan, prosecuted Scopes for allegedly teaching evolution at a Tennessee high school. Scopes Trial. Scopes was convicted and fined $100. Scopes v. State, 289 S.W. 363, 367 (Tenn. 1927). The Tennessee Supreme Court then vacated the judgment since Tennessee law required a jury—not a judge—to assess any fine of more than $50.00, but in Scopes’s case, the trial judge had done so. Id. The Tennessee law Scopes was accused of violating was ultimately repealed in 1967. Scopes Trial.

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matter; we are referring to only questions or matters on the same scale as “a

lawsuit before a court.” To use a metaphor, the analogy here is a bridge to

understanding.

In this case, though, that bridge was never built. The government charged

Nathan Van Buren with honest-services fraud (through bribery) for undertaking an

“official act” in his capacity as a police officer, in exchange for money. At the

close of the evidence, the district court instructed the jury that an “official act” is a

decision or action on a “question” or “matter.” But it did not inform the jury that

the “question” or “matter” in this context must be comparable in scope to a lawsuit,

hearing, or administrative determination. The jury convicted Van Buren.

Since the jury was not instructed with the crucial analogy limiting the

definition of “question” or “matter,” and because the government itself did not

otherwise provide the missing bridge, we cannot be sure beyond a reasonable

doubt that the jury convicted Van Buren of the offense that Congress criminalized

when it enacted the honest-services-fraud and bribery statutes. For this reason, we

must vacate Van Buren’s honest-services-fraud conviction and remand for a new

trial on that count. Van Buren was also charged with and convicted of computer

fraud, and we affirm that conviction.

I.

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Nathan Van Buren was a sergeant with the Cumming, Georgia, Police

Department. In his capacity as a police officer, Van Buren came to know a man

named Andrew Albo. Albo was a recent widower in his early sixties, who

allegedly fancied younger women, including minors and prostitutes. He allegedly

paid prostitutes to spend time with him and then often accused the women of

stealing the money he gave them. At least one woman also alleged Albo

surreptitiously recorded and harassed her. The Deputy Chief of Police in the

Cumming Police Department believed that Albo “had a mental health condition”

and considered Albo to be “very volatile,” so he warned his officers to “be careful”

with Albo.

Van Buren did not heed the Deputy Chief’s caveat. Instead, he fostered a

relationship with Albo. Van Buren, who first met Albo when he helped arrest

Albo for providing alcohol to a minor, often handled the disputes between Albo

and various women. At the time, Van Buren was grappling with financial

difficulties, and Van Buren saw in Albo a chance to improve his situation. So Van

Buren decided to ask Albo for a loan. To justify his request, Van Buren falsely

claimed he needed $15,368 to settle his son’s medical bills. He explained to Albo

that he could not obtain a loan from a bank because he had shoddy credit.

Unbeknownst to Van Buren, however, Albo recorded their conversations.

Albo presented the recording of Van Buren’s loan solicitation to a detective in the

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Forsyth County Sheriff’s Office. He told the detective that Van Buren was

“shak[ing] him down for his money.” Albo’s complaint drew the suspicion of the

FBI, which created a sting operation to test how far Van Buren was willing to go

for money. Under the plan, Albo was to give Van Buren some cash, and in

exchange, Albo was to ask Van Buren to tell him whether Carson, a woman he

supposedly met at a strip club, was an undercover police officer.

Over a series of meetings and communications monitored and recorded by

the FBI, Albo put the plan into action. At lunch with Van Buren on August 21,

2015, Albo handed Van Buren an envelope with $5,000, telling him that this was

“not the whole thing.” Van Buren offered to pay Albo back, but Albo waved that

off, saying money was “not the issue.” Instead, Albo told Van Buren he had met a

woman he liked at a strip club, but he needed to know if she was an undercover

officer before he would pursue her further. Van Buren agreed to help.

On August 31, Albo followed up on a previous discussion the pair had had

about searching the woman’s license plate in the police database. During that

conversation, Albo asked Van Buren whether he had had a chance to conduct the

search yet. Van Buren replied, “As far as running the plates, I don’t—I don’t think

I got the right plate numbers from you.” Van Buren then told Albo to just text him

the plate number, so Albo texted Van Buren “Pkp” and “1568,” a fake license plate

number created by the FBI. Van Buren responded that he would look into the

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matter, but he would need the “item” first. Albo replied that he had “2,” and the

pair scheduled to meet for lunch.

At lunch, Albo passed Van Buren an envelope containing $1,000 and

apologized that he did not have $2,000, as they had discussed.2 Van Buren asked

Albo for the woman’s name, explaining that “the car may not [be] registered to

her.” After learning that her name was Carson, Van Buren promised to attend to

the matter promptly, and Albo responded, “then I will have all the money for you.”

A few days later, on September 2, 2015, Van Buren searched for license-

plate number PKP1568 in the Georgia Crime Information Center (“GCIC”)

database, an official government database maintained by the Georgia Bureau of

Investigation (“GBI”) and connected to the National Crime Information Center

(“NCIC”) maintained by the FBI. Van Buren then texted Albo to tell him he had

information for him.

The next day, the FBI and GBI arrived at Van Buren’s doorstep and

conducted an interview with Van Buren. During the interview, Van Buren

admitted he had concocted a fake story about his son’s need for surgery to justify

asking Albo for $15,000. He also conceded he had received a total of $6,000 from

Albo. In addition, Van Buren confessed he had run a tag search for Albo and he

2 The FBI actually gave Albo $2,000 to pass to Van Buren, so it appears Albo may have attempted to retain $1,000 for himself.

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knew doing so was “wrong.” And while Van Buren asserted that $5,000 of the

money he received from Albo was a “gift,” he did reply “I mean he gave me

$1,000” when asked if he received anything in exchange for running the tag.

Finally, Van Buren conceded he understood the purpose of running the tag was to

discover and reveal to Albo whether Carson was an undercover officer.

A federal grand jury charged Van Buren with one count of honest-services

wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346, and one count of felony

computer fraud, in violation of 18 U.S.C. § 1030. At trial, the government

presented the FBI’s recordings of the interactions between Van Buren and Albo,

and the jury convicted Van Buren of both counts.

Van Buren now appeals his convictions. He argues the jury instructions the

district court gave were incorrect, insufficient evidence exists to support his

convictions, and the district court denied him his Sixth Amendment right to

confront an adverse witness during the trial.

We agree that the jury instructions on the honest-services count were fatally

flawed. But we nevertheless conclude the government presented sufficient

evidence to support a conviction on that count, so we remand that charge for a new

trial. On the other hand, we find no deficiencies with either the jury instructions

for or the evidence supporting the computer-fraud charge. Finally, we also reject

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Van Buren’s claim that he was denied his Sixth Amendment right to confront an

adverse witness at trial.

II.

We conduct a de novo review of the legal correctness of a jury instruction,

but we review for abuse of discretion questions concerning the phrasing of an

instruction. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We

likewise review for abuse of discretion a district court’s refusal to give a requested

jury instruction. United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir. 2004).

As for the sufficiency of evidence to support a conviction, we review that de

novo, considering the evidence “in the light most favorable to the government and

drawing all reasonable inferences and credibility choices in favor of the jury’s

verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). Under

this standard, we have explained that the jury’s verdict survives “unless no trier of

fact could have found guilt beyond a reasonable doubt.” United States v. Lyons, 53

F.3d 1198, 1202 (11th Cir. 1995).

Finally, we review de novo a Confrontation Clause claim. United States v.

Curbelo, 726 F.3d 1260, 1271–72 (11th Cir. 2013).

III.

We divide our discussion into three parts. In Section A, we address Van

Buren’s objections as they pertain to his honest-services-fraud conviction. Section

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B considers Van Buren’s objections to his computer-fraud conviction. And finally,

we examine Van Buren’s remaining arguments in Section C.

A.

We begin with honest-services fraud. The government theorized that Van

Buren deprived the public of his honest services by accepting a bribe, as that act is

defined by the federal bribery statute, 18 U.S.C. § 201. Under § 201, a public

official may not seek or receive anything of value in return for “being influenced in

the performance of any official act.” 18 U.S.C. § 201(b)(2). The statute defines an

“official act,” in turn, as “any decision or action on any question, matter, cause,

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

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

in such official’s place of trust or profit.” Id. § 201 (a)(3).

The controversy here centers on how a jury should be instructed regarding

what constitutes an “official act.” As relevant on appeal, the district court

instructed the jury as follows on the honest-services-fraud count:

With respect to Count 2, you are instructed that it is a federal crime to use interstate wire, radio or television communications to carry out a scheme to defraud someone else of a right to honest services. The Defendant can be found guilty of this crime only if all of the following facts are proven beyond a reasonable doubt:

First, that the Defendant knowingly devised or participated in a scheme to fraudulently deprive the public of the right to honest services of the Defendant through bribery or kickbacks. Second, that the Defendant did so with an intent to defraud the public of the right 9 Case: 18-12024 Date Filed: 10/10/2019 Page: 10 of 34

to the Defendant’s honest services; and, third, that the Defendant transmitted or caused to be transmitted by wire, radio or television some communication in interstate commerce to help carry out the scheme to defraud.

...

Bribery and kickbacks involve the exchanges of a thing or things of value for official action by a public official. Bribery and kickbacks also include solicitation of things of value in exchange for official action, even if the thing of value is not accepted or the official action is not performed, that is, bribery and kickbacks include the public official’s solicitation or agreement to accept something of value, whether tangible or intangible, in exchange for an official act, whether or not the payor actually provides the thing of value, and whether or not the public official ultimately performs the requested official action.

To qualify as an official act, the public official must have made a decision or taken an action on a question or matter. The question or matter must involve the formal exercise of governmental power. It must also be something specific which requires particular attention to the question or matter by the public official.

(emphasis added).

Van Buren objected, arguing that the district court should have instead

instructed the jury this way:

To qualify as an official act, the public official must have [made a decision or taken an action] . . . on a question, matter, cause, suit, proceeding, or controversy. Further, the question, matter, cause, suit, proceeding, or controversy must involve the formal exercise of governmental power. It must be similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific which requires particular attention by a public official.

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The public official’s [decision or action] . . . on that question, matter, cause, suit, proceeding, or controversy may include using his official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official. But setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—is not an official act.

(emphases added).3

A district court’s refusal to provide a requested instruction constitutes

reversible error if (1) the requested instruction was legally correct, (2) the content

of the requested instruction was not otherwise covered, and (3) the omitted

instruction was so vital that its absence seriously impaired the defense. United

States v. Opdahl, 930 F.2d 1530, 1533 (11th Cir. 1991). After careful review, we

conclude that all these conditions are present here, and the district court committed

reversible error in declining to instruct the jury that an “official act” “must be

similar in nature to a lawsuit before a court, a determination before an agency, or a

hearing before a committee.” To explain why, we start with McDonnell v. United

States, 136 S. Ct. 2355 (2016), the case on which Van Buren relied in requesting

the refused instruction.

3 For convenience, we have underlined and bolded the parts of Van Buren’s requested instruction that do not appear in the corresponding italicized and bolded instructions the district court gave the jury.

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Like Van Buren’s case, McDonnell also involved a prosecution for honest-

services fraud where the government defined the crime by reference to the bribery

statute. McDonnell, 136 S. Ct. at 2365. There, the government indicted former

Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, for

bribery. Id. at 2361. The couple had accepted about $175,000 in loans, gifts, and

other benefits from “the CEO of Star Scientific, a Virginia-based company that

developed and marketed Anatabloc, a nutritional supplement made from anatabine,

a compound found in tobacco.” Id. at 2361–62. In exchange, the government

alleged, McDonnell had committed at least five “official acts” for Star Scientific

and its CEO:

(1) he had arranged meetings between Star Scientific’s CEO and Virginia government officials to discuss and promote Star Scientific’s interests;

(2) he had hosted and attended events at the Governor’s Mansion designed to encourage Virginia university researchers to study and promote Star Scientific’s products;

(3) he had contacted other government officials to encourage Virginia state research universities to initiate studies favorable to Star Scientific;

(4) he had promoted Star Scientific by allowing its CEO to invite people to exclusive events at the Governor’s Mansion; and

(5) he had recommended that senior government officials in the Governor’s office meet with executives from Star Scientific.

Id. at 2365–66.

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The district court there instructed the jury that “official acts” are those that

“a public official customarily performs,” including acts “that have been clearly

established by settled practice as part of a public official’s position” and acts that

further long term goals or contribute to “a series of steps to exercise influence or

achieve an end.” Id. at 2366, 2373. So charged, the jury convicted McDonnell of

honest-services fraud, and the Fourth Circuit affirmed. The Supreme Court,

though, vacated that conviction because the instructions incorrectly described an

“official act.” Id. at 2375.

In explaining why, the Court observed that the words “cause, suit,

proceeding or controversy” in § 201(a)(3) “connote a formal exercise of

governmental power, such as a lawsuit, hearing, or administrative determination.”

Id. at 2368. With that in mind, the Supreme Court applied the interpretive canon

noscitur a sociis (“a word is known by the company it keeps”) to conclude that a

“question or matter”—words that appear in the same series of items as “cause, suit,

proceeding or controversy” in the definition of “official act”—must likewise “be

similar in nature to a cause, suit, proceeding or controversy.” Id. at 2368-69

(citation and internal quotation marks omitted). Confining the plain meaning of

“question” or “matter” in this way makes sense, explained the Court, since

otherwise, “the terms ‘cause, suit, proceeding or controversy’ would serve no role

in the statute—every ‘cause, suit, proceeding or controversy’ would also be a

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‘question’ or ‘matter.’” Id. at 2369. The Supreme Court also cautioned against

considering the question, matter, cause, suit, proceeding or controversy at too high

a level of generality; rather, the Court reasoned, any qualifying question, matter,

cause, suit, proceeding, or controversy must be “focused and concrete.” Id.

And to give further color to the phrase “question, matter, cause, suit,

proceeding or controversy,” McDonnell looked to the surrounding text. “Pending”

and “may by law be brought,” McDonnell explained, “suggest something that is

relatively circumscribed—the kind of thing that can be put on an agenda, tracked

for progress, and then checked off as complete.” Id. As for “may by law be

brought,” that implies “something within the specific duties of an official’s

position.” Id. And the word “any” indicates that “the matter may be pending

either before the public official who is performing the official act, or before

another public official.” Id.

Putting it all together, “question, matter, cause, suit, proceeding or

controversy” must be a formal government action analogous to a lawsuit, hearing,

or administrative determination that can be pending before any public official. It

must be specific and concrete, fall within the duties of an official’s position, and be

relatively circumscribed, capable of being put on an agenda, tracked for progress,

and checked off as complete.

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The McDonnell Court then applied this definition to the facts of its case.

“The first inquiry,” the Court said, is whether the activity at issue—a meeting, call,

or event—is itself a “question, matter, cause, suit, proceeding or controversy.” Id.

at 2368. Since the Court determined the activity was not, it moved on to the next

inquiry: whether the meeting, call, or event could “qualify as a ‘decision or action’

on a different question or matter.” Id. at 2369.

Answering that question, of course, required the Court to first identify the

different question or matter being acted on. Id. The Court began by explaining

that something like “Virginia business and economic development” could not

constitute an underlying matter because it is defined at too high a level of

generality and is not something that could be “pending” before a public official, as

the Court has construed “pending.” Id.

Then the Court turned to the Fourth Circuit’s formulation of the underlying

questions:

(1) “whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc”;

(2) “whether the state-created Tobacco Indemnification and Community Revitalization Commission would allocate grant money for the study of anatabine”; and

(3) “whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug.”

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Id. at 2369–70 (citation and internal quotation marks omitted). The Court agreed

with that formulation of the questions. Each of those questions, McDonnell

explained, “is focused and concrete, and each involves a formal exercise of

governmental power that is similar in nature to a lawsuit, administrative

determination, or hearing.” Id. at 2370. Still, merely setting up a meeting, hosting

an event, or calling another official—while actions related to those questions—

ultimately could not qualify as actions or decisions on those questions. Something

more was needed: for example, a decision to actually initiate a research study or to

provide advice to another official with the intent to cause the other official to

perform an official act. Id.

Then the Supreme Court turned to the jury instructions the district court

gave. Based on its interpretation of the “official act” language in § 201,

McDonnell concluded that the jury instructions were “significantly overinclusive.”

Id. at 2373–75. In particular, the district court had instructed the jury that an

“official act” includes “actions that have been clearly established by settled

practice as part of a public official’s position” and could include acts designed to

contribute to a long-term result. Id. at 2373. But that description did not inform

the jury that an official act must be on a “question, matter, cause, suit, proceeding

or controversy,” nor did it explain how to identify such an underlying “question,

matter, cause, suit, proceeding or controversy.” Id. at 2374. So while the Fourth

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Circuit noted possible questions on which McDonnell had perhaps acted, nothing

guaranteed that the jury found those questions on its own; instead, the Supreme

Court was concerned that the jury may have “convicted Governor McDonnell

without finding that he agreed to make a decision or take an action on a properly

defined question, matter, cause, suit, proceeding or controversy.” Id. at 2374–75

(internal quotation marks omitted). As a result, the Court concluded the error in

the instructions was not harmless beyond a reasonable doubt. Id.

The Supreme Court left it to the Fourth Circuit to decide whether to dismiss

the case or remand for a new trial. To make this determination, the Fourth Circuit

was to ascertain whether enough evidence existed to convict McDonnell of honest-

services fraud, given the Supreme Court’s clarification of “official act.” If so, the

Fourth Circuit could remand for a new trial. Otherwise, it was to dismiss the

charge. Id. at 2375.

McDonnell compels us to conclude that the instructions here were erroneous,

the error was not harmless, and a remand for a new trial on the honest-services

charge is the appropriate remedy.

As we have noted, the district court instructed jurors that an “official act”

involves a decision or action “on a question or matter” and that this question or

matter “must involve the formal exercise of governmental power” and be

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“something specific which requires particular attention.” But the court declined to

give Van Buren’s requested instruction that the question or matter “must be similar

in nature to a lawsuit before a court, a determination before an agency, or a hearing

before a committee,” reasoning that that instruction was inapplicable to Van

Buren’s case and would only confuse the jury.

This was error. As we have explained, McDonnell concluded that the words

“cause,” “suit,” “proceeding,” and “controversy” “connote a formal exercise of

governmental power, such as a lawsuit, hearing, or administrative determination.”

McDonnell, 136 S. Ct. at 2368. So a “question” or “matter”—housed in the same

statutory phrase as “cause,” “suit,” “proceeding,” and “controversy”—similarly

must involve a formal action of the same gravity as a lawsuit, hearing, or

administrative determination. That analogy—“such as a lawsuit, hearing, or

administrative determination”—is critical to understanding the meaning of

“question” or “matter” as those terms are used in the federal bribery statute. And

because the qualification that the “question or matter” be similar in nature to a

“lawsuit, hearing, or administrative determination” is the product of statutory

interpretation, not of McDonnell’s facts, this qualification applies with equal force

to Van Buren’s case.

This qualification also provides crucial context for what “formal exercise of

governmental power” means, as that phrase is used in the district court’s jury

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instruction. Without this analogy limiting the meaning of “question” or “matter,” a

“formal exercise of governmental power” could mean anything that a public

official does that falls within the scope of the official’s duties. Omitting the

analogy unravels essential statutory limitations that the Supreme Court identified

concerning the meaning of “official act.”

Naturally, removing those protections opens the door to the same harmful

effects that the Supreme Court described in McDonnell. Although the district court

here informed the jury that the “question” or “matter” had to be a “formal exercise

of governmental power,” that phrase did not illuminate the scale or nature of the

“question” or “matter” that would qualify, since it was not accompanied by an

instruction that the exercise of governmental power must be comparable to a

lawsuit, agency determination, or committee hearing. As in McDonnell, then, the

instructions “provided no assurance that the jury reached its verdict after finding” a

qualifying underlying question or matter. 136 S. Ct. at 2374.

And the government’s arguments only reinforce our doubt that the jury

identified a proper “question” or “matter” before convicting Van Buren. The

government does not argue that the license-plate search is itself the question or

matter, but rather that the search was an action on a question or matter. But the

government’s formulation of the “question” or “matter” at issue reveals its own

misinterpretation of those terms as they are used in the federal bribery statute.

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Specifically, the government contends that the underlying “question” is “whether

to provide information to Albo about whether a woman was working as an

undercover police officer.”

That, of course, is not a “question” or “matter” comparable to a lawsuit,

hearing, or administrative determination. Nor is it a “question” or “matter” like the

ones the Supreme Court identified as similar in McDonnell. As we have noted,

those questions asked whether to initiate a study at a state university, whether to

allocate grant money for a particular study, and whether to include something as a

covered drug. McDonnell, 136 S. Ct. at 2370. Each of these three “questions” is a

formal exercise of governmental power that is similar in nature to, say, an

administrative determination. Merely divulging information to a civilian is not.

And if the government could not identify a proper question on which Van Buren

acted, we can have no confidence that the jury did.

The government’s incorrect formulation of the “question” or “matter” here

also threatens to transform any improper disclosure by a public official into an

“official act” under the bribery statute, regardless of whether the disclosure was

meant to influence a formal exercise of governmental power that is analogous to a

lawsuit, hearing, or administrative determination. But as McDonnell reminded us,

“a statute in this field that can linguistically be interpreted to be either a meat axe

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or a scalpel should reasonably be taken to be the latter.” 136 S. Ct. at 2373 (citing

United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 408, 412 (1999)).

Not only was the government’s “question” incorrect, but the jury

instructions also prevented Van Buren from pointing out the government’s

mistake. Because the jury was not told that the “question” or “matter” must be

similar in nature to a lawsuit before a court, a determination before an agency, or a

hearing before a committee, Van Buren had no effective way to highlight the

government’s failure to identify an appropriate “question” on those grounds. Had

the jury been properly instructed, Van Buren very well could have successfully

made that argument. So we cannot say the error was harmless. See United States

v. Browne, 505 F.3d 1229, 1267–68 (11th Cir. 2007) (“The correct focus of

harmless-error analysis is whether it is clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty in the absence of the error.”).

In sum, Van Buren’s requested jury instruction that the question or matter

“must be similar in nature to a lawsuit before a court, a determination before an

agency, or a hearing before a committee” was correct and would have conveyed

critical information that the instructions did not otherwise cover. Its omission

deprived Van Buren of a potent argument and allowed the jury to convict him

without identifying a qualifying “question” or “matter” on which he acted.

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We therefore vacate Van Buren’s honest-services-fraud conviction. Opdahl,

930 F.2d at 1533 (explaining that failure to give a requested instruction is

reversible if the instruction is correct, not otherwise covered, and important enough

that its omission seriously impaired the defense). To the extent our prior precedent

holds that an “official act” is simply “[e]very action that is within the range of

official duty,” see United States v. Moore, 525 F.3d 1033, 1041 (11th Cir. 2008)

(quoting United States v. Birdsall, 233 U.S. 223, 230 (1914)), without regard to

whether that action is on a proper “question, matter, cause, suit, proceeding or

controversy,” it has clearly been abrogated by McDonnell. See United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (showing how an intervening

decision by the Supreme Court abrogates clearly inconsistent precedent).

Nevertheless, our vacatur of Van Buren’s honest-services-fraud conviction

does not end our inquiry into that charge. Van Buren also argues the government

failed to present sufficient evidence to convict him of bribery, raising the question

of whether we should remand for retrial or dismiss the charge. McDonnell, 136 S.

Ct. at 2375. After examining the evidence, we conclude a retrial is warranted.

Had the government identified a correct question or matter, the evidence,

when viewed in the light most favorable to the government, was sufficient to allow

a reasonable juror to conclude that Van Buren was guilty of bribery beyond a

reasonable doubt. Taylor, 480 F.3d at 1026 (describing standard of review on a

22 Case: 18-12024 Date Filed: 10/10/2019 Page: 23 of 34

sufficiency-of-the-evidence challenge). Among other things, Van Buren confessed

to the FBI and GBI that he ran the tag search for money. He also said that he knew

the purpose of the search was to discover and reveal whether Carson, the woman

Albo allegedly met at the club, was an undercover officer. If the government had

identified the underlying matter as something like an investigation into illegal

activity, such as prostitution, at the strip club, it may have been able to prove its

case.

Such an investigation would have been a specific, formal government action,

within the ambit of police activity, that is comparable to a lawsuit, hearing, or

administrative determination. It could have been put on an agenda, tracked for

progress, and marked off as complete. And Van Buren could have acted on the

underlying investigation because he could have influenced its findings had he

identified an undercover agent in his tag search and revealed her cover to Albo.

That Carson did not exist does not matter. The government presented evidence

that Van Buren was fully prepared, and acted, to compromise a potential

investigation, in exchange for money. His guilt or innocence cannot turn on

whether he was lucky enough that the person he searched for fortuitously did not

exist or that no investigation of the strip club was actually occurring.

For these reasons, we remand for a new trial on the honest-services-fraud

count. McDonnell, 136 S. Ct. at 2375.

23 Case: 18-12024 Date Filed: 10/10/2019 Page: 24 of 34

B.

Next, we turn to Van Buren’s computer-fraud conviction. For searching

Carson’s tag in the GCIC system, Van Buren was convicted of violating the

Computer Fraud and Abuse Act, which makes it a crime to obtain “information

from any protected computer” by “intentionally access[ing] a computer without

authorization or exceed[ing] authorized access.” 18 U.S.C. §1030(a)(2)(C). Van

Buren contends that two problems specific to his computer-fraud charge

undermine his conviction. He argues, first, that the district court should have

instructed the jury on the lesser-included offense of misdemeanor computer fraud,

and, second, that the government did not present enough evidence to sustain his

conviction. We are not persuaded.

The computer-fraud crime of which Van Buren was convicted is a

misdemeanor unless, among other things, it was committed for private financial

gain, in which case it is a felony. 18 U.S.C. § 1030(c)(2). The district court

instructed the jury on only felony computer fraud: it told the jury that to return a

guilty verdict against Van Buren, it must conclude that Van Buren acted for private

financial gain. But it did not raise the possibility that Van Buren could still be

convicted of the lesser-included, misdemeanor version of the offense, should the

24 Case: 18-12024 Date Filed: 10/10/2019 Page: 25 of 34

jury conclude the financial element was missing. Van Buren argues that this

omission of the misdemeanor instruction amounted to reversible error.

To succeed on his claim, Van Buren must meet a two-part test. First, he

must satisfy the “elements test” by proving that the charged offense encompasses

all the elements of the lesser offense. Here, that is not a problem. Indeed, the

parties do not dispute that the “elements test” is satisfied: the sole difference

between the felony and misdemeanor versions of crime, as relevant to Van Buren’s

case, is the private-financial-gain element. But Van Buren must also meet a

second requirement: he must demonstrate that the evidence would have allowed a

rational jury to acquit him of the greater offense while convicting him of the lesser.

United States v. Whitman, 887 F.3d 1240, 1246–47 (11th Cir. 2018), cert.

denied, 139 S. Ct. 1276, 203 (2019). This he cannot do.

Van Buren’s problem arises from the fact that the record contains no

evidence that Van Buren engaged in computer access for any reason other than

financial gain. As an initial matter, Van Buren’s argument that there is evidence

he ran the search as part of a good-faith effort to investigate Albo’s other troubles

with women does him no good: if Van Buren truly ran the PKP1568 tag as part of

a legitimate good-faith investigation, that would absolve him of computer fraud

entirely, since he would just be doing his job. As a result, even assuming a jury

could find he acted in good faith, that would not support the inference that a

25 Case: 18-12024 Date Filed: 10/10/2019 Page: 26 of 34

rational jury could have convicted him of misdemeanor computer fraud. Plus, the

record lacks any evidence that Van Buren ran the PKP1568 tag as part of a good-

faith investigation.

Perhaps sensing the hole in this argument, Van Buren alternatively urges

that the money he received was only a loan. Even if we call the money Van Buren

received a “loan,” though, a loan still confers financial benefit. As Van Buren

admitted, he needed money to cover his bills but was having trouble securing a

loan because of his poor credit. So receiving what appears to be an interest-free

cash loan that he could use to cover any immediate needs counts as financial gain.

Van Buren next claims the record contains evidence that he ran the GCIC

search before Albo offered him money to do so. This “evidence” appears to

consist of the brief phone call between Van Buren and Albo on the morning of

August 31, 2015, when Albo asked Van Buren if he had run the license plate yet,

and Van Buren replied, “I don’t—I don’t think I got the right plate numbers from

you.” Van Buren suggests this conversation demonstrates that Van Buren had

already run a search on Carson’s plate before receiving the $1,000 payment, so he

had no financial motive for the unauthorized search.

But the rest of the record frustrates Van Buren’s attempt to capitalize on his

stray remark. First, on August 21—ten days before the August 31 conversation on

which Van Buren relies—Van Buren had already received $5,000 from Albo and

26 Case: 18-12024 Date Filed: 10/10/2019 Page: 27 of 34

agreed in principle to investigate Carson. And second, even setting aside those

facts, which independently establish financial gain, the record reflects that Albo

did not provide Van Buren with Carson’s purported plate number for the first time

until after the August 31 conversation. In fact, Van Buren only ever tried to run

Carson’s alleged tag number once, and that occurred on September 2, 2015—

again, after the August 31 conversation. So on this record, Van Buren’s “I don’t

think I got the right plate numbers from you” comment can be understood to mean

only that he had not yet received Carson’s license-plate information from Albo.

Finally, Van Buren tries to show that a jury could have determined he

wrongly accessed the computer for reasons other than financial gain: he highlights

a comment he made to Albo during a recorded conversation on August 26, 2015.

At that time, Van Buren stated, “I’m not charging for helping you out.” In that

convoluted exchange, though, Van Buren simultaneously claimed he was not

looking into Carson for money, while he also probed whether Albo would continue

to “help [him] out with the rest of the medical bills.” Van Buren refers to the

“rest” of the bills, of course, because he had already received $5,000 of the

$15,368 he allegedly needed and had already agreed to research Carson’s identity

by that point. And later, Van Buren texted Albo for more money as a condition of

running the search and took another $1,000. But perhaps most significantly, Van

27 Case: 18-12024 Date Filed: 10/10/2019 Page: 28 of 34

Buren expressly confessed to the FBI and GBI that he ran the tag search for

money.

In short, no jury could have rationally believed that if Van Buren searched

Carson’s tag in the GCIC system on September 2, 2015, he did it for some non-

financial, unidentified reason. The district court therefore did not abuse its

discretion in declining to give the misdemeanor-computer-fraud instruction.

We next consider Van Buren’s contention that the evidence did not

sufficiently support his conviction for computer fraud. Although styled as a

sufficiency-of-the-evidence challenge, the animating force behind this argument is

an appeal to overrule United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010),

where we held that even a person with authority to access a computer can be guilty

of computer fraud if that person subsequently misuses the computer.

Rodriguez, the defendant in that case, was a Social Security Administration

(“SSA”) employee who, for personal reasons, used the SSA’s computer database to

research information such as birth dates and home addresses of 17 people.

Rodriguez, 628 F.3d at 1260. This violated SSA policy, which prohibited

employees from obtaining information from SSA databases without a legitimate

business reason. Id. Rodriguez was convicted of computer fraud.

28 Case: 18-12024 Date Filed: 10/10/2019 Page: 29 of 34

On appeal, though, he argued he was innocent because “he accessed only

databases that he was authorized to use,” albeit for inappropriate reasons. Id. at

1263. We rejected that argument. We noted that the computer-fraud statute

defines “exceeds authorized access,” as “to access a computer with authorization

and to use such access to obtain or alter information in the computer that the

accesser is not entitled [so] to obtain or alter.” Id. at 1263 (quoting § 1030(e)(6)).

Then we determined that the defendant had “exceeded his authorized access and

violated the [computer-fraud statute] when he obtained [the victims’] personal

information for a nonbusiness reason.” Id. (emphasis added).

Van Buren points out that our sister circuits have criticized Rodriguez’s

interpretation of “exceeds authorized access,” since it purportedly allows

employers or other parties to legislate what counts as criminal behavior through

their internal policies or their terms of use. Echoing the defendant’s argument in

Rodriguez, Van Buren alleges that he is innocent of computer fraud because he

accessed only databases that he was authorized to use, even though he did so for an

inappropriate reason.

We acknowledge that other courts have rejected Rodriguez’s interpretation

of “exceeds authorized access.” See, e.g., United States v. Nosal, 676 F.3d 854,

860 (9th Cir. 2012) (en banc) (noting that activities like “[Google]-chatting with

friends, playing games, shopping or watching sports highlights” on a work

29 Case: 18-12024 Date Filed: 10/10/2019 Page: 30 of 34

computer are routinely prohibited by computer-use policies, and worrying that

“under the broad interpretation of the [computer-fraud statute], such minor

dalliances would become federal crimes”); United States v. Valle, 807 F.3d 508,

528 (2d Cir. 2015) (“While the Government might promise that it would not

prosecute an individual for checking Facebook at work, we are not at liberty to

take prosecutors at their word in such matters.”). But under our prior-precedent

rule, “a prior panel’s holding is binding on all subsequent panels unless and until it

is overruled or undermined to the point of abrogation by the Supreme Court or by

this court sitting en banc.” Archer, 531 F.3d at 1352. Since Van Buren has

identified no Supreme Court or en banc decision of this Circuit that abrogates

Rodriguez, we must continue to follow it.

And under Rodriguez, there is no question that the record contained enough

evidence for a jury to convict Van Buren of computer fraud. The evidence showed

that Van Buren accepted $6,000 and agreed to investigate Carson. It demonstrated

that Van Buren searched what was supposed to be Carson’s tag in the GCIC

database. At trial, one of the assistant deputy directors of the GCIC testified that

the database is supposed to be used for law-enforcement purposes only and that

officers are trained on the proper and improper uses of the system. Van Buren also

admitted to the FBI and GBI that he knew it was “wrong” to run the tag search and

that he had done so for money. And as we have noted, Rodriguez previously

30 Case: 18-12024 Date Filed: 10/10/2019 Page: 31 of 34

rejected the contention that misusing databases a defendant lawfully can access

does not constitute computer fraud. Taken in the light most favorable to the

verdict, under our binding Circuit precedent, a jury could have found beyond a

reasonable doubt that Van Buren committed computer fraud for financial gain.

C.

Van Buren raises two remaining arguments: one challenging the district

court’s decision to decline giving good-faith instructions to the jury, and the other

asserting that his Sixth Amendment right to confront Albo was violated at trial.

We address each in turn.

First, Van Buren contends the district court abused its discretion in refusing

to give his requested good-faith instructions. Specifically, Van Buren asked for

two good-faith instructions, one explaining that good faith is a complete defense to

any charge that requires willfulness and one explaining that good faith is a

complete defense to any charge that requires intent to defraud. The district court

declined to give those instructions, reasoning that the record lacked any evidentiary

basis to support them. That decision fell within the proper scope of the district

court’s discretion.

As we have explained, a district court’s refusal to provide a requested

instruction is reversible error if (1) the requested instruction was legally correct, (2)

31 Case: 18-12024 Date Filed: 10/10/2019 Page: 32 of 34

the content of the requested instruction was not otherwise covered, and (3) the

omitted instruction was so vital that its absence seriously impaired the defense.

Opdahl, 930 F.2d at 1533. A good-faith instruction is legally correct if any

foundation in evidence supports it. United States v. Martinelli, 454 F.3d 1300,

1315 (11th Cir. 2006). But Van Buren has not met even this minimal evidentiary

bar.

He points out that in the past, he and other officers had searched license

plates Albo had provided, as part of legitimate investigations into Albo’s issues

with other women. That’s true. What’s missing, though, is any evidence that Van

Buren searched the particular tag at issue this time—PKP1568—for a law-

enforcement purpose. So Van Buren’s requested instruction is not “correct”

because no evidentiary basis supports it.

Nor has Van Buren showed that omission of the good-faith instructions

seriously impaired his defense, since even assuming that any trace of good faith

could be squeezed from the record, it would have been negligible in the face of the

overwhelming evidence of wrongdoing. See Martinelli, 454 F.3d at 1316 (holding

that the absence of a good-faith instruction did not seriously impair the defense,

since “the evidence of fraud . . . was overwhelming and the evidence of good faith

was slight.”).

32 Case: 18-12024 Date Filed: 10/10/2019 Page: 33 of 34

Finally, Van Buren argues he was deprived of his Sixth Amendment right to

confront adverse witnesses. Albo did not testify at Van Buren’s trial because he

allegedly had fled to Italy. In Albo’s absence, the government played the

recordings that the FBI had taped of the conversations between Albo and Van

Buren. Van Buren contends that the admission of Albo’s statements on the

recordings violated his constitutional right to confront Albo. We find no merit to

that argument.

The Sixth Amendment’s Confrontation Clause guarantees a criminal

defendant “the right . . . to be confronted with the witnesses against him.” U.S.

Const. amend. VI. This usually means that the defendant must have an opportunity

to cross-examine an adverse witness at trial before that witness’s statements may

be admitted. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). But

significantly, the Confrontation Clause does not block statements that are used “for

purposes other than establishing the truth of the matter asserted.” Id. at 59 n.9.

For instance, in United States v. Price, 792 F.2d 994 (11th Cir. 1986), the

government relied on recordings between the defendant and another individual,

since the person who made the recordings had passed away before trial. Id. at 996.

The defendant asserted that admitting the other person’s statements on the

recording violated his Confrontation Clause right. We rejected that argument,

finding that “[t]he single purpose for admitting the [other person’s] statements was

33 Case: 18-12024 Date Filed: 10/10/2019 Page: 34 of 34

to make understandable to the jury the statements made by [the defendant]

himself.” Id. at 997. Put simply, the statements in question were not offered for

their truth, so the defendant’s “Sixth Amendment right of confrontation and to

present a defense was not violated by the introduction of the tapes into evidence.”

Id.

The same is true here: Albo’s statements were admitted only to provide

context for Van Buren’s statements and to show their effect on Van Buren. For

example, whether Albo was actually interested in Carson or whether he actually

wanted to learn her real identity was not at issue here; the truth or falsity of those

claims did not tend to make it more or less likely that Van Buren had committed a

charged crime. Rather, the government offered those statements solely to put into

context Van Buren’s remarks and actions. Because none of Albo’s recorded

statements was offered for its truth, none was subject to the Confrontation Clause.

IV.

For all the above reasons, we vacate Van Buren’s honest-services-fraud

conviction and remand for a new trial on that charge. We affirm his computer-

fraud conviction.

VACATED AND REMANDED IN PART; AFFIRMED IN PART.