In United States v. Van Buren, No. 18-12024 (Oct. 10,
2019) (Rosenbaum, Martin, Boggs), the Court affirmed a conviction under
the Computer Fraud and Abuse Act, but vacated a conviction for honest-services
fraud through bribery.
The Court vacated the honest-services fraud conviction
because the court failed to properly instruct the jury that about the meaning
of the "official act" sought through bribery. Relying on the Supreme Court's decision in McDonnell,
the Court explained that an "official act" must be similar in nature
to a lawsuit, hearing, or administration determination that can be pending
before a public official. Here, the
district court refused the defendant's request to instruct the jury about that
meaning. Instead, it instructed the jury
only that an official act involves a question or matter involving the formal
exercise of government power. The error
was not harmless because, absent that proposed instruction, the defendant had
no way to highlight the government's failure to identify an official act. But because the government adduced sufficient
evidence to convict had the jury been properly instructed, the Court remanded for a new
trial as opposed to reversing the conviction outright.
As to the computer fraud conviction, the Court first found no error in declining to instruct the jury on
a lesser-included misdemeanor offense on the ground that it was not committed for private
financial gain. The Court found no
evidence that would have allowed the jury to convict him on the misdemeanor but not
the felony, as there was no evidence that he engaged in the fraud for any
reason other than personal financial gain.
The Court also found that the evidence was sufficient to support the
conviction even though he inappropriately accessed a law-enforcement database that
he was authorized to use; while that argument might prevail in other circuits, it was foreclosed by Eleventh Circuit precedent.
Finally, the Court rejected the defendant's argument that
the court erred by declining to give a good-faith instruction, finding that
this decision was within the court's discretion due to a lack of supporting
evidence. The Court also rejected the
defendant's argument that he was denied his Sixth Amendment right to confront
adverse witnesses because the out-of-court witness statement was admitted only
to provide context for the defendant's statement, not for their truth.
