Eleventh Circuit Court of Appeals - Published Opinions

Thursday, October 10, 2019

Van Buren: Vacating Honest-Services Fraud Conviction For Failing to Instruct Jury on Meaning of "Official Act"

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.