we're glad to see you here this morning and i it reminds me of my former district court days where they were in a buzzing courthouse with lots of people are all we have got two panels this week and it's nice to see you all both welcome judge bogs who hails from kentucky sits on the th circuit there and he blesses us with his presence fairly regularly i think we decided it was his th sitting in them warrant reversal including the use of incorrect jury instructions and the failure to give correct requested instructions insufficient evidence as to both camps and violations of the confrontation clause and i'll start with the honest services fraud count which ended up being count one in the indictment after the st count was dismissed there was insufficient evidence in this case to prove that mr van buren committed a violation of the honest services fraud statute  because there was no evidence that he committed and in fishel act in exchange for money at st glance it does seem like an official act when you look at it it's something that he did at work the allegation in this case is that he ran a license plate for information through the g c i c system for money that's the allegation but what we know from mcdonnell mcdonnell versus the united states is that official act is actually a term of art that there's a specific meaning for the phrase official act and it's not the official act or action that we might associate with common usage or even that the jury might associate with common usage there's a very specific meaning for that phrase now when it came time to instruct the jury in this case regarding  honest services fraud defense counsel requested the pattern instruction from this court and the trial court determined that that would be confusing to the jury and decided not to give the pattern instruction so it seems like you know what the requested charge was about was giving out the very issue that was decided and mcdonnell which you know makes it a fact question as i understand it is that right about whether a certain act is an official i think that's right your honor so the question for the jury or the question that we believe what should have been presented to the jury was was this an official act certainly in its closing argument the government argued running the tag as an official act but when defense counsel said look if you look at the language from mcdonald which talks about what an official act is it tells us that it has to be something akin to a lawsuit before a court a determination before an agency or a hearing before a committee and the trial court said no i don't think it's like that i think we can be do something more expansive than what macdonald said the court said i'm only going to instruct on what that it needs to be a question or matter and i think that question matter can be more expansively read than what is outlined in mcdonnell but if you look at mcdonald page thirty three is directly on point where the court says we define question a matter by the terms it is associated with the term that it's included with the misstep shoot and those are controversy and the court says it is similar to those things that must be akin to those things but the trial court said no that's confusing to the jury i'm not going to instruct that way then when the court when and trial counsel did a great job in this case of pressing the issue repeatedly when the court was again pressed on it the court said i don't think there was a controversy here he ran a tag i mean that's not the decision making process it's not like t mcdonald case and the court said i don't think you can say that using the g c i c computer whatever it was is something that's similar in nature to a lawsuit or a term of a determination before an agency or a hearing before a committee they're totally different so the trial court recognized that the facts of the case would not warrant a conviction under the language from mcdonnell and from the pattern instruction here and the court said for that reason i'm not going to give that part of the instruction the part that tells a jury that official act has a tie mark with a specific meaning so that the charges went out to the jury with no further instruction on that issue now i did cite in my brief other cases other more recent cases that came after mcdonald and one of the cases i would point the case from the d c circuit which was an on bank decision by the d c circuit where they dealt with almost exactly the same issue and the court said the honest services fr instruction in this official act instruction is aimed at the corruption in the decision making process of government we're talking about the formal exercise of governmental power so mcdonnell tells us we have to identify what that question is that's pending that's akin to those things i talked about and we have to find out if that official took action on that question and we didn't have either of those things that happened in this case now at trial the government said the question is whether he would run the attack right whether he would run the tag now in its brief the government says oh the question is whether he would provide information to this other person about suppose that undercover officer but that question was never presented to the jury there's no evidence that the jury determined that question and on that and they they don't they say actually in some of the briefing the question was whether he should do the act or not but that would encompass everything because we always have to decide whether or not to act but to try because we have to draw a line here if in fact elbow was let's say had been indicted or had been actively under investigation and he was asked to do something that would impact that investigation to destroy evidence something of that sort would that then make it within the bounds of macdonald it would your honor and that's what the valdez case talks about it was prima donna but it talks about how you just answering a question whose car is this which is the question that you're asking when you run a tag whose car is this who owns this car just asking that question is not enough to qualify as an official act but if you take action to start an investigation or stop an investigation or try to influence a vote on something that's when you're talking about that decision making process and trying to influence the decision making process and we just don't have that here in the jury wasn't informed that that's what they needed to have to do a conviction on and so if for example the the jury had been properly instructed and the government's theory had been that there was they that the matter was a pending investigation into prostitution then this might qualify i don't your honor i don't think so because i'm not sure that it was a pending investigation into prostitution if you're saying that if there was more facts that there was a prostitution investigation going on and mr van buren doesn't have to be an actual but i mean obviously it's an undercover sting i mean it's not a undercover sting it's a sting right so  if so there's not a real prostitution investigation going on but had there been a prostitution investigation going on and had he done what he is alleged to have done then it seems to me it would qualify under mcdon honor i don't think it does just as on a reading of that of this case it's an inquiry it's some part of a court if it's tethered to the investigation in some way that influences the investigation that says you know what now that i found this information about this person that he alleges to be an undercover i'm going to either start an investigation or make a phone call to stop the investigation that's when you're getting into influencing the decision making process why wouldn't it influence the matter under investigation if there were and  prosecution investigation to alert the person to alert albo that that there was an undercover cop who was posing as i guess a prostitute well your hon or i think the issue here was there couple of issues there one of them is that mr alba made repeated requests to the police department this last request it was about a totally not live new dancer and it came to mr van buren and said i think she's undercover there was no description about what that actually meant but i don't think anybody in the case actually thought that a totally live totally nude live dancer was an undercover officer i don't think there's any evidence that there would have been an investigation into whether an undercover officer was dancing at the pink pony so i agree there was no actual investigation i guess what i'm asking you is and i guess what i'm asking you is is it enough to show a pending matter or whatever for to be a fake investigation if you will and i think it's about this court talked about that too and i think if it were a real investigation and they showed he took action to influence the investigation i don't think running the tag influences the investigation but he took i see my time is almost up but if he took action to influence the investigation then yes even if it's a fake investigation i think you have a problem ok there's a violation thank you thank you the government's argument is that the pattern jury instruction was not a correct statement of law under the facts of this case while the structure given by the district court was so i think you have a problem here with the instruction and i want to give you an opportunity to explain why it's not and specifically under mcdonnell i think that mcdonnell focuses on just what kind of pending matter something must be that is significance of the pending matter and i'm not sure or at least at this point i think that the in the jury instructions that were can that were given did not convey the significance of the type of matter that it needed to be that it needs to be something comparable for example to a lawsuit or something of that nature and and then to sort of compound the problem i don't think that the matter that the government described during trial would have qualified as a matter under mcdonnell so i think there are two problems here and i think it made a big difference to and i'm quoting from the actual opinion this is under a more confer confined interpretation or whatever question in matter may be understood to refer to a formal exercise of governmental power that is similar in nature to a cause suit proceeding or controversy and i was in those the exactly the words that were left out of the instructions exactly were left out of the instructions and then but that does not necessarily fall into one of those as i recall the facts i mean one of the problems that was the subject that litigation that the governor allowed the governor's mansion to be used you know for the pharmaceutical friend of his to  promote a product and so i think they said you know that was not an official act right that's correct judge and but in this case is different so i think what what every every case is different but looking at the if the court were to adopt that the pattern jury instruction and that particular line that the government believes did not have to be included respect to this case that it must be similar to an in nature to a lawsuit before a court fraud how's that so though i mean why couldn't you just prosecuted in the same way with the language in there and state have the government state that it's theory is that the matter of the official matter that was pending was you know an investigation into prostitution of course it's not real but that that was the matter that he was attempting to make and act on right and so when he went ahead and he ran the license plate to find out whether or not this fake woman i guess was an undercover cop he took an action on a pending matter why couldn't you prosecute it that way well because the language goes back it's on a subject and it is an official act of the government so why is that not why is that not similar in nature to you know a law go ahead i mean it can be any of those other things but it has to be something more than just something that shouldn't be done because under your theory as it was put isn't almost anything that an officer does that he shouldn't be doing i you know i can give you a bunch of of hypotheticals of you know there's there's a police or valence there's a video camera and just generally i'd like to know if that shows my wife at a certain street corner now that's confidential information they shouldn't give it to me but under the your theory it's it's a question or a matter was my wife at that street corner that's my problem is that granted it's not perfect but the government's theory without that language which is straight from macdonald makes anything a question because you just said i thought the question was is she an undercover cop what anything that the police know that maybe they shouldn't tell you is a fact and you ask a question right so how do you how would you cabinet the supreme court certainly seems to say it needs to be cab it right judge rosenbaum's questions and martin's question seemed to indicate one way of trying to cabinet you don't like that can we cabin it at all or am i right that it's that broad well it's  not that brought out by the instructions given by a district court from mcdonnell it says what the district or destructive a jury to qualify as an official act the public official must have made a decision or taken action when a question or a question and your definition of question a different places in the briefs is completely broad at one point you say the question is should he act or shouldn't he act that covers everything that here you said the question is is she an undercover cop any fact is a question right and i think the instruction in mcdonnell that this could just record use it cabins up by saying the question or matter must involve the formal exercise of governmental camera in one of them you look at a computer your i thought your definition of an exercise of the fischel power is something that a policeman does something that a policeman does because here this is all he did he did something that he physically was able to do but he shouldn't have given out we did more than he did more than that i think the court questioner matter is the inquiry into whether it was a law enforcement officer who was undercover and that's what the money was paid for and the actual running the tag was his taking a step to actually do that and in choir about that but that wasn't a question or a matter that was so when he really had just asked him you know hey do you know if if not tosh is an undercover cop and he said yes that would have that would have been on a services fraud  i mean you have to get the wire right or somewhere to get relief yes i believe that under oath so that was that was where i came in is that anything that a cop says that he shouldn't say is an official act well you know i think i think part of the reason were brought up valdez in valdez they talk about and it's in between it's under two a one and it talks about official duty and official act and in that decision there's a i think that decision number one that that decision was not the narrow definition official act in that case was distinguished in more and more said which is after valdez that is the d c circuit opinion the th circuit in more after valdez says no we do d on the bribery and only convicted on the actual ritu eighty's there was an insufficient because of the definition official act in that into a one let me see if i can come out of this one just make sure we're all starting with the same assumptions you know what i mean when we write this opinion we've got a we've got a framework we have to follow so the when you've got a complaint about a jury charge the st question we act and was was the requested jury charge correct and i think we agree the answer to that is yes right i mean a lot bigger government said this brief and i'm saying now that it was correct but not of the facts of this case asked for was not given and not covered by other and i just agreed that i believe that the instruction crafted by this or court covered the concerns in mcdonnell and that was sufficient to charge a jury or how to determine o  the defendants our arguments relating to the computer fraud charge but also what i also want to go to the harmless error analysis as well for the pattern for the history instruction and i did a study in a letter brief and in that i included the case of united states versus police e it's a case i guess of corum nobis related to a charge of bribery under two a one and in that case in an unpubli decision the court held that despite the fact that the instruction in that case and not comply with mcdonald it was harmless error because of the because in that case contract and that the individual then different in that case took action on that and i think you had that here as well that this court if even if it finds that the instruction was not a correct statement alone did not comply with mcdonnell that it was harmless error in light of the the nature of the actual question or a matter that was a specific action taken on that matter and it complied with the requirements overall one issue and not the other as well while your honor i think if the court ruled that there was insufficient evidence he wouldn't you know that that charge would be vacated and then if the court ruled that the other conviction was sound i think that he would retain that sentence of and if i can just address rodriguez i know the government touched on it briefly in response to judge bob's question is that ok if i address rodriguez for a nd yes ok so we outlined rodrigues in both  opening brief and i reply brief but one thing i want to say about rodriguez is i do think there are couple of distinctions between rodriguez and this case in that case not only was mr rodriguez charged with a violation of a different part of the statu the part of the statute the talked about using a government computer and i understand that may not be it may be a distinction without a difference but the new case law that's been coming around is talking about how it's the statute that mr van buren has been charged with that's really ripe for abuse because it talks about a protected computer being any computer that affects interstate commerce so now what we have is a wide open situation where someone can be charged with a violation of federal law if they  violate their terms of use policy at their workplace or an in user licensing agreement so the person who's drafting those terms of use policies is now setting the boundaries for federal law federal criminal law and we sided and civil cases where there's a discussion about whether this is appropriate the definition of exceeding authorized access but i certainly think in the criminal context it's obviously much more critical when you're talking about letting the  statutes unconstitutional were what does it mean in terms of our analysis of it well your honor i think it's two things one and i think we've asked the court to revisit the rodriguez decision we think this this case is a little bit different than rodriguez because  rodriguez the court acknowledge that mr rodriguez admitted that he did not have any proper purpose for doing the research he was doing and he also admitted that he did unauthorized searches and there's no evidence in this case that mr van buren made those kinds of and he kind of did though didn't he i mean he admitted that he was doing at that he was doing the search for mr albo to find out whether it was not or cover cop and he also admitted that he knew that it was wrong so i'm not sure we can get away from it on the facts and as far as you might be right about your thoughts on whether it is right or wrong but we're we're bound by and so i don't have to follow it your honor i think if the court it's two things one i think we are distinguished from rodriguez in those way but if the court determines that that's not true and that it believes it's bound by rodriguez we'd ask the court to take a nd look at rodriguez especially in light of the new cases and that have been coming down this statute was written in one thousand nine hundred and six when very few people had access to computers the statute now is being applied as that th circuit no still case talks about this particular provision of the statute the protected computer in the computer affecting interstate commerce affects every single one of us who logs onto a computer and i understand what you're saying but for the three of us aren't we bound by rodriguez is there some way that you think we're not bound by rodriguez well your honor i did in the facts what you've just described right no i do i think the court can say that there is precedent from this circuit finding that exceeding authorized access means the misuse of information but i do think the court could also recognize that there's been kind of a tidal wave of discussion now about the computer fraud and abuse act we're courts are starting to recognize that it shouldn't be interpreted this way in the language from those cases that we cited not only in the civil context but in the criminal context i think is relevant to the court at least looking at the case thank you i understand the court's determination that it may be bound by rodrigues as far as the honest services fraud questions that the court had and i do think the court asked about what the analysis should be when defense counsel asks for an instruction that's not given in this case the trial court said it believed that the instruction that was correct was were requested was a correct statement of the law but that it had no basis in this case so the court said yes i think that's a correct statement the law has nothing to do with us so that's the st part the nd part and we don't think it was covered by any of the other instructions that were provided and as i outlined in the brief the government was able to stand up in closing argument and say to the jury running the tag is an official act we think running the tag is an official act defense counsel could not stand up you know straight faced and say reading the tag isn't an official act because the jury would go to its common usage of what is official act there was no term of art description in the instructions provided to them so the standard for the jury and say he was in his uniform he did it during the work day it's something that happened while he was at work but it's not an official act the diary would just disregard that man ask you you would agree though that there would be a way to prosecute the crime it's actually charged just zooming that somebody did these things right there would be a way to prosecute this crime under this statute would you agree with that if it's tethered to an investigation and has some effect on the investigation either squelching the investigation further in the investigation for a purpose that is not the lawful purpose i don't think i know well if you revealed an undercover cop to a member of the public who is going to interact with an undercover cop when she would agree that that could have an effect on the investigation but that's not what he did your honor he ran under stand but i'm asking you a hypothetical question if there were an investigation where someone revealed to another person that person that a cop was working undercover yes but that would be charged differently than it's charged here he's charged with running the search he's not charged with the use of the information even when we're talking back about rodriguez rodriguez says we don't care what you do with the information it's not the use of the information for that computer fraud violation i see my time is up but it's not it's not charged that way here it's charged as the moment in time when he did the search it's not the moment in time when he might later share the information and that these talks about some future investigation if it could be tethered to a current investigation yes it could be a violation but if it's some imaginary future investigation we're not there it doesn't meet the statute thank you so much