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`[PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 18-12024
`________________________
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`D.C. Docket No. 1:16-cr-00243-ODE-JFK-1
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`UNITED STATES OF AMERICA,
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` Plaintiff - Appellee,
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`versus
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`NATHAN VAN BUREN,
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` Defendant - Appellant.
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`________________________
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`Appeal from the United States District Court
`for the Northern District of Georgia
`________________________
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`(October 10, 2019)
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`

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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 2 of 34
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`Before MARTIN, ROSENBAUM, and BOGGS,∗ Circuit Judges.
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`ROSENBAUM, Circuit Judge:
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`Perhaps Dudley Field Malone said it best when he opined, “One good
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`analogy is worth three hours’ discussion.”1 Or in this case, 15 pages of discussion.
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`See infra at pp. 9–23.
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`Take, for example, this case.
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`“[A] lawsuit before a court” is a pretty big deal to most people. But a
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`generic “question” or “matter,” in common usage, maybe not so much.
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`That impression may change, though, if we clarify what we mean by
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`“question” or “matter” in a specific context by analogizing to something else. So if
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`we say that, for our purposes, to qualify as a “question” or a “matter,” the question
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`or matter must be of the same significance or scope as “a lawsuit before a court,” a
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`person would understand that we are not talking about just any old question or
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`∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
`designation.
`1 Richard Nordquist, The Value of Analogies in Writing and Speech, ThoughtCo.,
`https://www.thoughtco.com/what-is-an-analogy-1691878 (last visited Oct. 8, 2019). Along with
`Clarence Darrow, Dudley Field Malone defended John Scopes in the 1925 “Scopes Trial,”
`formally known as State v. Scopes. Scopes Trial, Encyclopaedia Britannica, https://www.
`britannica.com/event/Scopes-Trial (last visited Oct. 8, 2019) (“Scopes Trial”); Malone’s Trial
`Speech (Full Text), Historical Thinking Matters, http://historicalthinkingmatters.org/scopestrial/
`1/sources/44/fulltext/ (last visited Oct. 8, 2019) (“Malone’s Trial Speech”). In that case,
`Tennessee, led by William Jennings Bryan, prosecuted Scopes for allegedly teaching evolution at
`a Tennessee high school. Scopes Trial. Scopes was convicted and fined $100. Scopes v. State,
`289 S.W. 363, 367 (Tenn. 1927). The Tennessee Supreme Court then vacated the judgment
`since Tennessee law required a jury—not a judge—to assess any fine of more than $50.00, but in
`Scopes’s case, the trial judge had done so. Id. The Tennessee law Scopes was accused of
`violating was ultimately repealed in 1967. Scopes Trial.
`
`
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`2
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 3 of 34
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`matter; we are referring to only questions or matters on the same scale as “a
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`lawsuit before a court.” To use a metaphor, the analogy here is a bridge to
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`understanding.
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`In this case, though, that bridge was never built. The government charged
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`Nathan Van Buren with honest-services fraud (through bribery) for undertaking an
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`“official act” in his capacity as a police officer, in exchange for money. At the
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`close of the evidence, the district court instructed the jury that an “official act” is a
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`decision or action on a “question” or “matter.” But it did not inform the jury that
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`the “question” or “matter” in this context must be comparable in scope to a lawsuit,
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`hearing, or administrative determination. The jury convicted Van Buren.
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`Since the jury was not instructed with the crucial analogy limiting the
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`definition of “question” or “matter,” and because the government itself did not
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`otherwise provide the missing bridge, we cannot be sure beyond a reasonable
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`doubt that the jury convicted Van Buren of the offense that Congress criminalized
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`when it enacted the honest-services-fraud and bribery statutes. For this reason, we
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`must vacate Van Buren’s honest-services-fraud conviction and remand for a new
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`trial on that count. Van Buren was also charged with and convicted of computer
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`fraud, and we affirm that conviction.
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`I.
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`3
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`Nathan Van Buren was a sergeant with the Cumming, Georgia, Police
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`Department. In his capacity as a police officer, Van Buren came to know a man
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`named Andrew Albo. Albo was a recent widower in his early sixties, who
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`allegedly fancied younger women, including minors and prostitutes. He allegedly
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`paid prostitutes to spend time with him and then often accused the women of
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`stealing the money he gave them. At least one woman also alleged Albo
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`surreptitiously recorded and harassed her. The Deputy Chief of Police in the
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`Cumming Police Department believed that Albo “had a mental health condition”
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`and considered Albo to be “very volatile,” so he warned his officers to “be careful”
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`with Albo.
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`Van Buren did not heed the Deputy Chief’s caveat. Instead, he fostered a
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`relationship with Albo. Van Buren, who first met Albo when he helped arrest
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`Albo for providing alcohol to a minor, often handled the disputes between Albo
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`and various women. At the time, Van Buren was grappling with financial
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`difficulties, and Van Buren saw in Albo a chance to improve his situation. So Van
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`Buren decided to ask Albo for a loan. To justify his request, Van Buren falsely
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`claimed he needed $15,368 to settle his son’s medical bills. He explained to Albo
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`that he could not obtain a loan from a bank because he had shoddy credit.
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`Unbeknownst to Van Buren, however, Albo recorded their conversations.
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`Albo presented the recording of Van Buren’s loan solicitation to a detective in the
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`4
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 5 of 34
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`Forsyth County Sheriff’s Office. He told the detective that Van Buren was
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`“shak[ing] him down for his money.” Albo’s complaint drew the suspicion of the
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`FBI, which created a sting operation to test how far Van Buren was willing to go
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`for money. Under the plan, Albo was to give Van Buren some cash, and in
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`exchange, Albo was to ask Van Buren to tell him whether Carson, a woman he
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`supposedly met at a strip club, was an undercover police officer.
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`Over a series of meetings and communications monitored and recorded by
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`the FBI, Albo put the plan into action. At lunch with Van Buren on August 21,
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`2015, Albo handed Van Buren an envelope with $5,000, telling him that this was
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`“not the whole thing.” Van Buren offered to pay Albo back, but Albo waved that
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`off, saying money was “not the issue.” Instead, Albo told Van Buren he had met a
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`woman he liked at a strip club, but he needed to know if she was an undercover
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`officer before he would pursue her further. Van Buren agreed to help.
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`On August 31, Albo followed up on a previous discussion the pair had had
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`about searching the woman’s license plate in the police database. During that
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`conversation, Albo asked Van Buren whether he had had a chance to conduct the
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`search yet. Van Buren replied, “As far as running the plates, I don’t—I don’t think
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`I got the right plate numbers from you.” Van Buren then told Albo to just text him
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`the plate number, so Albo texted Van Buren “Pkp” and “1568,” a fake license plate
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`number created by the FBI. Van Buren responded that he would look into the
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`5
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 6 of 34
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`matter, but he would need the “item” first. Albo replied that he had “2,” and the
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`pair scheduled to meet for lunch.
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`At lunch, Albo passed Van Buren an envelope containing $1,000 and
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`apologized that he did not have $2,000, as they had discussed.2 Van Buren asked
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`Albo for the woman’s name, explaining that “the car may not [be] registered to
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`her.” After learning that her name was Carson, Van Buren promised to attend to
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`the matter promptly, and Albo responded, “then I will have all the money for you.”
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`A few days later, on September 2, 2015, Van Buren searched for license-
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`plate number PKP1568 in the Georgia Crime Information Center (“GCIC”)
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`database, an official government database maintained by the Georgia Bureau of
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`Investigation (“GBI”) and connected to the National Crime Information Center
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`(“NCIC”) maintained by the FBI. Van Buren then texted Albo to tell him he had
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`information for him.
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`The next day, the FBI and GBI arrived at Van Buren’s doorstep and
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`conducted an interview with Van Buren. During the interview, Van Buren
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`admitted he had concocted a fake story about his son’s need for surgery to justify
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`asking Albo for $15,000. He also conceded he had received a total of $6,000 from
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`Albo. In addition, Van Buren confessed he had run a tag search for Albo and he
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`2 The FBI actually gave Albo $2,000 to pass to Van Buren, so it appears Albo may have
`attempted to retain $1,000 for himself.
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`6
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 7 of 34
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`knew doing so was “wrong.” And while Van Buren asserted that $5,000 of the
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`money he received from Albo was a “gift,” he did reply “I mean he gave me
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`$1,000” when asked if he received anything in exchange for running the tag.
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`Finally, Van Buren conceded he understood the purpose of running the tag was to
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`discover and reveal to Albo whether Carson was an undercover officer.
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`A federal grand jury charged Van Buren with one count of honest-services
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`wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346, and one count of felony
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`computer fraud, in violation of 18 U.S.C. § 1030. At trial, the government
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`presented the FBI’s recordings of the interactions between Van Buren and Albo,
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`and the jury convicted Van Buren of both counts.
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`Van Buren now appeals his convictions. He argues the jury instructions the
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`district court gave were incorrect, insufficient evidence exists to support his
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`convictions, and the district court denied him his Sixth Amendment right to
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`confront an adverse witness during the trial.
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`We agree that the jury instructions on the honest-services count were fatally
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`flawed. But we nevertheless conclude the government presented sufficient
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`evidence to support a conviction on that count, so we remand that charge for a new
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`trial. On the other hand, we find no deficiencies with either the jury instructions
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`for or the evidence supporting the computer-fraud charge. Finally, we also reject
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`7
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 8 of 34
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`Van Buren’s claim that he was denied his Sixth Amendment right to confront an
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`adverse witness at trial.
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`II.
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`We conduct a de novo review of the legal correctness of a jury instruction,
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`but we review for abuse of discretion questions concerning the phrasing of an
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`instruction. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We
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`likewise review for abuse of discretion a district court’s refusal to give a requested
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`jury instruction. United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir. 2004).
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`As for the sufficiency of evidence to support a conviction, we review that de
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`novo, considering the evidence “in the light most favorable to the government and
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`drawing all reasonable inferences and credibility choices in favor of the jury’s
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`verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007). Under
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`this standard, we have explained that the jury’s verdict survives “unless no trier of
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`fact could have found guilt beyond a reasonable doubt.” United States v. Lyons, 53
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`F.3d 1198, 1202 (11th Cir. 1995).
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`Finally, we review de novo a Confrontation Clause claim. United States v.
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`Curbelo, 726 F.3d 1260, 1271–72 (11th Cir. 2013).
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`III.
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`We divide our discussion into three parts. In Section A, we address Van
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`Buren’s objections as they pertain to his honest-services-fraud conviction. Section
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`8
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 9 of 34
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`B considers Van Buren’s objections to his computer-fraud conviction. And finally,
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`we examine Van Buren’s remaining arguments in Section C.
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`A.
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`We begin with honest-services fraud. The government theorized that Van
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`Buren deprived the public of his honest services by accepting a bribe, as that act is
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`defined by the federal bribery statute, 18 U.S.C. § 201. Under § 201, a public
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`official may not seek or receive anything of value in return for “being influenced in
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`the performance of any official act.” 18 U.S.C. § 201(b)(2). The statute defines an
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`“official act,” in turn, as “any decision or action on any question, matter, cause,
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`suit, proceeding or controversy, which may at any time be pending, or which may
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`by law be brought before any public official, in such official’s official capacity, or
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`in such official’s place of trust or profit.” Id. § 201 (a)(3).
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`The controversy here centers on how a jury should be instructed regarding
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`what constitutes an “official act.” As relevant on appeal, the district court
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`instructed the jury as follows on the honest-services-fraud count:
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`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:
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`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
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`9
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 10 of 34
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`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.
`
` .
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` . .
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`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.
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`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 attention
`to the question or matter by the public official.
`
` (emphasis added).
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`
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`Van Buren objected, arguing that the district court should have instead
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`instructed the jury this way:
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`To qualify as an official act, the public official must have [made a
`decision or taken an action] . . . on a question, matter, cause, suit,
`proceeding, or controversy. Further, the question, matter, cause,
`suit, proceeding, or controversy must involve the formal exercise of
`governmental power. It must be similar in nature to a lawsuit
`before a court, a determination before an agency, or a hearing
`before a committee. It must also be something specific which
`requires particular attention by a public official.
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`
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`10
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 11 of 34
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`The public official’s [decision or action] . . . on that question,
`matter, cause, suit, proceeding, or controversy may include using
`his official position to exert pressure on another official to
`perform an official act, or to advise another official, knowing or
`intending that such advice will form the basis for an official act by
`another official. But setting up a meeting, talking to another
`official, or organizing an event (or agreeing to do so)—without
`more—is not an official act.
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`(emphases added).3
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`
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`A district court’s refusal to provide a requested instruction constitutes
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`reversible error if (1) the requested instruction was legally correct, (2) the content
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`of the requested instruction was not otherwise covered, and (3) the omitted
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`instruction was so vital that its absence seriously impaired the defense. United
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`States v. Opdahl, 930 F.2d 1530, 1533 (11th Cir. 1991). After careful review, we
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`conclude that all these conditions are present here, and the district court committed
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`reversible error in declining to instruct the jury that an “official act” “must be
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`similar in nature to a lawsuit before a court, a determination before an agency, or a
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`hearing before a committee.” To explain why, we start with McDonnell v. United
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`States, 136 S. Ct. 2355 (2016), the case on which Van Buren relied in requesting
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`the refused instruction.
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`i.
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`3 For convenience, we have underlined and bolded the parts of Van Buren’s requested
`instruction that do not appear in the corresponding italicized and bolded instructions the district
`court gave the jury.
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`11
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 12 of 34
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`
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`Like Van Buren’s case, McDonnell also involved a prosecution for honest-
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`services fraud where the government defined the crime by reference to the bribery
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`statute. McDonnell, 136 S. Ct. at 2365. There, the government indicted former
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`Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, for
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`bribery. Id. at 2361. The couple had accepted about $175,000 in loans, gifts, and
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`other benefits from “the CEO of Star Scientific, a Virginia-based company that
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`developed and marketed Anatabloc, a nutritional supplement made from anatabine,
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`a compound found in tobacco.” Id. at 2361–62. In exchange, the government
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`alleged, McDonnell had committed at least five “official acts” for Star Scientific
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`and its CEO:
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`(1) he had arranged meetings between Star Scientific’s CEO and Virginia
`government officials to discuss and promote Star Scientific’s interests;
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`(2) he had hosted and attended events at the Governor’s Mansion designed
`to encourage Virginia university researchers to study and promote Star
`Scientific’s products;
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`(3) he had contacted other government officials to encourage Virginia state
`research universities to initiate studies favorable to Star Scientific;
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`(4) he had promoted Star Scientific by allowing its CEO to invite people to
`exclusive events at the Governor’s Mansion; and
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`(5) he had recommended that senior government officials in the Governor’s
`office meet with executives from Star Scientific.
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`Id. at 2365–66.
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`12
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`The district court there instructed the jury that “official acts” are those that
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`“a public official customarily performs,” including acts “that have been clearly
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`established by settled practice as part of a public official’s position” and acts that
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`further long term goals or contribute to “a series of steps to exercise influence or
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`achieve an end.” Id. at 2366, 2373. So charged, the jury convicted McDonnell of
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`honest-services fraud, and the Fourth Circuit affirmed. The Supreme Court,
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`though, vacated that conviction because the instructions incorrectly described an
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`“official act.” Id. at 2375.
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`In explaining why, the Court observed that the words “cause, suit,
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`proceeding or controversy” in § 201(a)(3) “connote a formal exercise of
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`governmental power, such as a lawsuit, hearing, or administrative determination.”
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`Id. at 2368. With that in mind, the Supreme Court applied the interpretive canon
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`noscitur a sociis (“a word is known by the company it keeps”) to conclude that a
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`“question or matter”—words that appear in the same series of items as “cause, suit,
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`proceeding or controversy” in the definition of “official act”—must likewise “be
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`similar in nature to a cause, suit, proceeding or controversy.” Id. at 2368-69
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`(citation and internal quotation marks omitted). Confining the plain meaning of
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`“question” or “matter” in this way makes sense, explained the Court, since
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`otherwise, “the terms ‘cause, suit, proceeding or controversy’ would serve no role
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`in the statute—every ‘cause, suit, proceeding or controversy’ would also be a
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`13
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 14 of 34
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`‘question’ or ‘matter.’” Id. at 2369. The Supreme Court also cautioned against
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`considering the question, matter, cause, suit, proceeding or controversy at too high
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`a level of generality; rather, the Court reasoned, any qualifying question, matter,
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`cause, suit, proceeding, or controversy must be “focused and concrete.” Id.
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`And to give further color to the phrase “question, matter, cause, suit,
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`proceeding or controversy,” McDonnell looked to the surrounding text. “Pending”
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`and “may by law be brought,” McDonnell explained, “suggest something that is
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`relatively circumscribed—the kind of thing that can be put on an agenda, tracked
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`for progress, and then checked off as complete.” Id. As for “may by law be
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`brought,” that implies “something within the specific duties of an official’s
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`position.” Id. And the word “any” indicates that “the matter may be pending
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`either before the public official who is performing the official act, or before
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`another public official.” Id.
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`Putting it all together, “question, matter, cause, suit, proceeding or
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`controversy” must be a formal government action analogous to a lawsuit, hearing,
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`or administrative determination that can be pending before any public official. It
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`must be specific and concrete, fall within the duties of an official’s position, and be
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`relatively circumscribed, capable of being put on an agenda, tracked for progress,
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`and checked off as complete.
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`
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`14
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`The McDonnell Court then applied this definition to the facts of its case.
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`“The first inquiry,” the Court said, is whether the activity at issue—a meeting, call,
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`or event—is itself a “question, matter, cause, suit, proceeding or controversy.” Id.
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`at 2368. Since the Court determined the activity was not, it moved on to the next
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`inquiry: whether the meeting, call, or event could “qualify as a ‘decision or action’
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`on a different question or matter.” Id. at 2369.
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`Answering that question, of course, required the Court to first identify the
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`different question or matter being acted on. Id. The Court began by explaining
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`that something like “Virginia business and economic development” could not
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`constitute an underlying matter because it is defined at too high a level of
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`generality and is not something that could be “pending” before a public official, as
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`the Court has construed “pending.” Id.
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`Then the Court turned to the Fourth Circuit’s formulation of the underlying
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`questions:
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`(1) “whether researchers at any of Virginia’s state universities would initiate
`a study of Anatabloc”;
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`(2) “whether the state-created Tobacco Indemnification and Community
`Revitalization Commission would allocate grant money for the study of
`anatabine”; and
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`(3) “whether the health insurance plan for state employees in Virginia would
`include Anatabloc as a covered drug.”
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`15
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 16 of 34
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`Id. at 2369–70 (citation and internal quotation marks omitted). The Court agreed
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`with that formulation of the questions. Each of those questions, McDonnell
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`explained, “is focused and concrete, and each involves a formal exercise of
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`governmental power that is similar in nature to a lawsuit, administrative
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`determination, or hearing.” Id. at 2370. Still, merely setting up a meeting, hosting
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`an event, or calling another official—while actions related to those questions—
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`ultimately could not qualify as actions or decisions on those questions. Something
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`more was needed: for example, a decision to actually initiate a research study or to
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`provide advice to another official with the intent to cause the other official to
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`perform an official act. Id.
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`
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`Then the Supreme Court turned to the jury instructions the district court
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`gave. Based on its interpretation of the “official act” language in § 201,
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`McDonnell concluded that the jury instructions were “significantly overinclusive.”
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`Id. at 2373–75. In particular, the district court had instructed the jury that an
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`“official act” includes “actions that have been clearly established by settled
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`practice as part of a public official’s position” and could include acts designed to
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`contribute to a long-term result. Id. at 2373. But that description did not inform
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`the jury that an official act must be on a “question, matter, cause, suit, proceeding
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`or controversy,” nor did it explain how to identify such an underlying “question,
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`matter, cause, suit, proceeding or controversy.” Id. at 2374. So while the Fourth
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`16
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`Circuit noted possible questions on which McDonnell had perhaps acted, nothing
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`guaranteed that the jury found those questions on its own; instead, the Supreme
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`Court was concerned that the jury may have “convicted Governor McDonnell
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`without finding that he agreed to make a decision or take an action on a properly
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`defined question, matter, cause, suit, proceeding or controversy.” Id. at 2374–75
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`(internal quotation marks omitted). As a result, the Court concluded the error in
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`the instructions was not harmless beyond a reasonable doubt. Id.
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`The Supreme Court left it to the Fourth Circuit to decide whether to dismiss
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`the case or remand for a new trial. To make this determination, the Fourth Circuit
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`was to ascertain whether enough evidence existed to convict McDonnell of honest-
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`services fraud, given the Supreme Court’s clarification of “official act.” If so, the
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`Fourth Circuit could remand for a new trial. Otherwise, it was to dismiss the
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`charge. Id. at 2375.
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`ii.
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`McDonnell compels us to conclude that the instructions here were erroneous,
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`the error was not harmless, and a remand for a new trial on the honest-services
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`charge is the appropriate remedy.
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`As we have noted, the district court instructed jurors that an “official act”
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`involves a decision or action “on a question or matter” and that this question or
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`matter “must involve the formal exercise of governmental power” and be
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 18 of 34
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`“something specific which requires particular attention.” But the court declined to
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`give Van Buren’s requested instruction that the question or matter “must be similar
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`in nature to a lawsuit before a court, a determination before an agency, or a hearing
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`before a committee,” reasoning that that instruction was inapplicable to Van
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`Buren’s case and would only confuse the jury.
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`This was error. As we have explained, McDonnell concluded that the words
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`“cause,” “suit,” “proceeding,” and “controversy” “connote a formal exercise of
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`governmental power, such as a lawsuit, hearing, or administrative determination.”
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`McDonnell, 136 S. Ct. at 2368. So a “question” or “matter”—housed in the same
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`statutory phrase as “cause,” “suit,” “proceeding,” and “controversy”—similarly
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`must involve a formal action of the same gravity as a lawsuit, hearing, or
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`administrative determination. That analogy—“such as a lawsuit, hearing, or
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`administrative determination”—is critical to understanding the meaning of
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`“question” or “matter” as those terms are used in the federal bribery statute. And
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`because the qualification that the “question or matter” be similar in nature to a
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`“lawsuit, hearing, or administrative determination” is the product of statutory
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`interpretation, not of McDonnell’s facts, this qualification applies with equal force
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`to Van Buren’s case.
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`This qualification also provides crucial context for what “formal exercise of
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`governmental power” means, as that phrase is used in the district court’s jury
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 19 of 34
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`instruction. Without this analogy limiting the meaning of “question” or “matter,” a
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`“formal exercise of governmental power” could mean anything that a public
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`official does that falls within the scope of the official’s duties. Omitting the
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`analogy unravels essential statutory limitations that the Supreme Court identified
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`concerning the meaning of “official act.”
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`Naturally, removing those protections opens the door to the same harmful
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`effects that the Supreme Court described in McDonnell. Although the district court
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`here informed the jury that the “question” or “matter” had to be a “formal exercise
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`of governmental power,” that phrase did not illuminate the scale or nature of the
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`“question” or “matter” that would qualify, since it was not accompanied by an
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`instruction that the exercise of governmental power must be comparable to a
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`lawsuit, agency determination, or committee hearing. As in McDonnell, then, the
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`instructions “provided no assurance that the jury reached its verdict after finding” a
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`qualifying underlying question or matter. 136 S. Ct. at 2374.
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`And the government’s arguments only reinforce our doubt that the jury
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`identified a proper “question” or “matter” before convicting Van Buren. The
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`government does not argue that the license-plate search is itself the question or
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`matter, but rather that the search was an action on a question or matter. But the
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`government’s formulation of the “question” or “matter” at issue reveals its own
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`misinterpretation of those terms as they are used in the federal bribery statute.
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 20 of 34
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`Specifically, the government contends that the underlying “question” is “whether
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`to provide information to Albo about whether a woman was working as an
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`undercover police officer.”
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`That, of course, is not a “question” or “matter” comparable to a lawsuit,
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`hearing, or administrative determination. Nor is it a “question” or “matter” like the
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`ones the Supreme Court identified as similar in McDonnell. As we have noted,
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`those questions asked whether to initiate a study at a state university, whether to
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`allocate grant money for a particular study, and whether to include something as a
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`covered drug. McDonnell, 136 S. Ct. at 2370. Each of these three “questions” is a
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`formal exercise of governmental power that is similar in nature to, say, an
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`administrative determination. Merely divulging information to a civilian is not.
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`And if the government could not identify a proper question on which Van Buren
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`acted, we can have no confidence that the jury did.
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`The government’s incorrect formulation of the “question” or “matter” here
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`also threatens to transform any improper disclosure by a public official into an
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`“official act” under the bribery statute, regardless of whether the disclosure was
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`meant to influence a formal exercise of governmental power that is analogous to a
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`lawsuit, hearing, or administrative determination. But as McDonnell reminded us,
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`“a statute in this field that can linguistically be interpreted to be either a meat axe
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`USCA11 Case: 18-12024 Date Filed: 10/10/2019 Page: 21 of 34
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`or a scalpel should reasonably be taken to be the latter.” 136 S. Ct. at 2373 (citing
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`United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 408, 412 (1999)).
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`Not only was the government’s “question” incorrect, but the jury
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`instructions also prevented Van Buren from pointing out the government’s
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`mistake. Because the jury was not told that the “question” or “matter” must be
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`similar in nature to a lawsuit before a court, a determination before an agency, or a
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`hearing before a committee, Van Buren had no effective way to highlight the
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`government’s failure to identify an appropriate “question” on those grounds.