from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:16-cr-00243-ODE-JFK-1
MARTIN, ROSENBAUM, and BOGGS, [*] Circuit Judges.
ROSENBAUM, CIRCUIT JUDGE
Dudley Field Malone said it best when he opined, "One
good analogy is worth three hours'
discussion." Or in this case, 15 pages of discussion.
See infra at pp. 9-23.
for example, this case.
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.
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.
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.
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.
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.
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.
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.
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
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, Albo passed Van Buren an envelope containing $1, 000
and apologized that he did not have $2, 000, as they had
discussed. 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
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
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.
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.
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.
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.
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).
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).
we review de novo a Confrontation Clause claim.
United States v. Curbelo, 726 F.3d 1260, 1271-72
(11th Cir. 2013).
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
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).
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
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 ...