Law: Appellate brief taking side of united states
I need an appellate brief written. the case follows a police officer that used a government computer system for an inappropriate reason. The brief must be 10,000 words. Attached is the opinion written by the lower courts and the entire record. The brief is to be submitted to the united states supreme court.
Page of
United States v. Van Buren
United States v. Van Buren
United States Court of Appeals for the Eleventh Circuit
October 10, 2019, Decided
No. 18-12024
Reporter
940 F.3d 1192*; 2019 U.S. App. LEXIS 30346**; 28 Fla. L. Weekly Fed. C 455; 2019 WL 5078229
UNITED STATES OF AMERICA, Plaintiff – Appellee, versus NATHAN VAN BUREN, Defendant – Appellant.
Subsequent History:US Supreme Court certiorari granted by Van Buren v. United States, 2020 U.S. LEXIS 2336 (U.S., Apr. 20, 2020)
Prior History:[**1]Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:16-cr-00243-ODE-JFK-1.
United States v. Van Buren, 2017 U.S. Dist. LEXIS 29024 (N.D. Ga., Mar. 1, 2017)
Disposition:VACATED AND REMANDED IN PART; AFFIRMED IN PART.
Case Summary
Overview
HOLDINGS: [1]-Defendant was improperly convicted of honest-services fraud because the district court committed reversible error in declining to instruct the jury that an official act had to be similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee, and that omission deprived defendant of a potent argument and allowed the jury to convict him without identifying a qualifying question or matter on which he acted; [2]-A remand for a new trial on the honest-services charge was the appropriate remedy because 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 defendant was guilty of bribery beyond a reasonable doubt.
Outcome
Judgment affirmed in part and vacated and remanded in part.
Counsel:For United States of America, Plaintiff – Appellee: Jeffrey A. Brown, Christopher Conrad Bly, Jane Elizabeth McBath, Lawrence R. Sommerfeld, U.S. Attorney Service – Northern District of Georgia, U.S. Attorney’s Office, Atlanta, GA.
For Nathan Van Buren, Defendant – Appellant: Saraliene Durrett, Law Offices of Saraliene Smith Durrett, Atlanta, GA; Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA.
Judges:Before MARTIN, ROSENBAUM, and BOGGS,[footnoteRef:0]* Circuit Judges.
[0: *Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation.]
Opinion by:ROSENBAUM
Opinion
[*1196] ROSENBAUM, Circuit Judge:
Perhaps Dudley Field Malone said it best when he opined, “One good analogy is worth three hours’ discussion.”[footnoteRef:1]1 Or in this case, 15 pages of discussion. See infra at pp. 9-23. [1: 1Richard 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, 154 Tenn. 105, 289 S.W. 363, 367 (Tenn. 1927). The Tennessee Supreme Court then vacated the judgment since Tennessee law required a jurynot a judgeto 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.]
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[**2] 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 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 [*1197] 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[**3] 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.
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[**4] 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 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[**5] 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 [*1198] a chance to conduct the search yet. Van Buren replied, “As far as running the plates, I don’tI 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 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[**6] Van Buren an envelope containing $1,000 and apologized that he did not have $2,000, as they had discussed.[footnoteRef:2]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.” [2: 2The FBI actually gave Albo $2,000 to pass to Van Buren, so it appears Albo may have attempted to retain $1,000 for himself.]
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 knew doing so was “wrong.” And while Van Buren asserted that $5,000[**7] 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[**8] for or the evidence supporting the computer-fraud charge. Finally, we also reject 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, [*1199] 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 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[**9] 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:[**10]
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 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 [*1200] 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[**11] 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.
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[**12] by another official. But setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)without moreis not an official act
.
(emphases added).[footnoteRef:3]3 [3: 3For 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.]
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, 195 L. Ed. 2d 639 (2016), the case on which Van Buren relied in requesting the refused instruction.
i.
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[**13] had accepted about $175,000 in loans, gifts, and other benefits from “the CEO of Star Scientific, a Virginia-based [*1201] 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.
The district court there instructed the jury that “official acts” are those that “a public official customarily performs,” including[**14] 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[**15] terms ’cause, suit, proceeding or controversy’ would serve no role in the statuteevery ’cause, suit, proceeding or controversy’ would also be a ‘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 circumscribedthe 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.
[*1202] Putting it all together, “question, matter, cause, suit, proceeding or controversy” must be a formal[**16] 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.
The McDonnell Court then applied this definition to the facts of its case. “The first inquiry,” the Court said, is whether the activity at issuea meeting, call, or eventis 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.”[**17] 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.”
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 officialwhile actions related to those questionsultimately 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[**18] 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 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 [*1203] 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[**19] 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.
ii.
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 “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[**20] 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 instruction. Without this[**21] 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 [*1204] 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[**22] 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. 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[**23] 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 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, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (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[**24] analysis is whethe
