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United States v. Buren

United States Court of Appeals, Eleventh Circuit

October 10, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
NATHAN VAN BUREN, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:16-cr-00243-ODE-JFK-1

          Before MARTIN, ROSENBAUM, and BOGGS, [*] Circuit Judges.


         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 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.


         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 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 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 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 Van Buren's claim that he was denied his Sixth Amendment right to confront an adverse witness at trial.


         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).


         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.


         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 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 ...

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