[00:00:00] Speaker 05:
Case number 23-3212, United States of America versus David Petzl at balance.

[00:00:07] Speaker 05:
Ms.

[00:00:08] Speaker 05:
McNamara for the balance, Ms.

[00:00:10] Speaker 05:
Kelly for the appellee.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
Good morning, and may it please the court.

[00:00:16] Speaker 03:
My name is Linda Jule and McNamara, and it's my privilege today to be here before you representing former special FBI agent David Petzl.

[00:00:24] Speaker 03:
This appeal presents some challenging questions regarding the reach of the federal bribery statute.

[00:00:31] Speaker 03:
But this court did not grapple with many of those thorny questions that this case presents, such as what's the difference between an official duty and a lawful duty?

[00:00:41] Speaker 03:
And do federal ethical regulations of all types always define an official's official duty?

[00:00:48] Speaker 03:
We addressed those issues in our brief, and we certainly stand by those arguments.

[00:00:53] Speaker 03:
But regardless of how those issues are resolved, Mr. Petzl would be entitled to relieve from his convictions

[00:01:00] Speaker 03:
because the district court here committed such a serious and fundamental error in the jury instructions.

[00:01:06] Speaker 03:
Therefore, I'd like to at least start by addressing that error.

[00:01:09] Speaker 03:
Mr. Petzl was convicted of bribery under 18 USC section 201 B2C and of conspiracy to do so.

[00:01:21] Speaker 03:
That statute says that whoever being a public official accepts something of value

[00:01:29] Speaker 03:
to do something in violation of his official duty, is guilty of bribery, and may be sentenced to up to 15 years in prison.

[00:01:40] Speaker 03:
Because the bribery statute doesn't tell us what constitutes an official duty, that question is a question for the jury.

[00:01:49] Speaker 03:
But in violation of Mr. Patel's Fifth and Sixth Amendment rights to have the jury decide each element of the offense beyond a reasonable doubt,

[00:01:59] Speaker 03:
The district court here removed that element from the jury's consideration.

[00:02:04] Speaker 03:
And here's how that happened.

[00:02:06] Speaker 03:
The pertinent bribery count was count five.

[00:02:10] Speaker 03:
Count four charged his co-defendant, Mr. Bailey, with a violation of a different subsection, section 201B1C, offering a bribe to a public official, that is Mr. Petzl,

[00:02:24] Speaker 03:
to do an act in violation of his lawful duty, different term.

[00:02:31] Speaker 03:
When instructing the jury on count four, the court told the jury that that offense had four elements.

[00:02:39] Speaker 03:
First, that Mr. Bailey gave something of value to Mr. Petzl.

[00:02:44] Speaker 03:
Second, that Mr. Petzl was a public official because he was an FBI agent.

[00:02:49] Speaker 03:
that Mr. Bailey did so corruptly with the intent to induce David Petzl to violate a lawful duty applicable to Mr. Petzl's position as an FBI agent.

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And fourth, that Mr. Petzl had a lawful duty not to use government resources for non-official business in order to keep confidential the information that Bailey sought.

[00:03:16] Speaker 03:
but then went on to define lawful duty, saying, for purposes of this instruction, a lawful duty is this, that, and the other thing.

[00:03:25] Speaker 05:
Who proposed that definition with the definition of lawful duty?

[00:03:31] Speaker 03:
The lawful duty definition was proposed initially jointly by the defendants and by Mr. Bailey throughout the course of the proceedings.

[00:03:42] Speaker 03:
The jury instructions went back and forth several times.

[00:03:45] Speaker 05:
Okay, but Mr. Pites will jointly endorse that definition of law of lawful duty.

[00:03:51] Speaker 05:
Yes, yes.

[00:03:53] Speaker 05:
And then

[00:03:55] Speaker 05:
On the instructions as to Mr. Paitzel, am I saying that right, Paitzel?

[00:04:01] Speaker 05:
Paitzel.

[00:04:01] Speaker 05:
Paitzel.

[00:04:02] Speaker 05:
Mr. Paitzel's instructions, and I take it your objection is with the third one, where the court said he did so corruptly in return for being induced to violate his official duty not to use government resources.

[00:04:14] Speaker 05:
You said your concern there is that that didn't leave it to the jury to decide whether there was such an official duty.

[00:04:20] Speaker 05:
Who proposed that instruction?

[00:04:22] Speaker 03:
That instruction was initially proposed by the defendants jointly.

[00:04:26] Speaker 05:
I don't know what you mean by initially.

[00:04:29] Speaker 05:
This exact language was proposed by Mr. Peitzel.

[00:04:32] Speaker 03:
It was.

[00:04:32] Speaker 03:
I will say the government has not contended that this is an invited error.

[00:04:36] Speaker 05:
I'm asking you whether it is.

[00:04:41] Speaker 05:
They have argued that this in fact was proposed by Mr. Peitzel.

[00:04:47] Speaker 03:
These jury instructions were the subject of... I'm asking about this one.

[00:04:51] Speaker 03:
Understood.

[00:04:52] Speaker 03:
Understood.

[00:04:53] Speaker 03:
But the definition of the term lawful and official duty went back and forth many times.

[00:04:58] Speaker 05:
But this third one that you say had the district court take from the jury, and I understand that argument, the question of whether an official duty existed and what it was, was proposed by Mr. Petzl.

[00:05:12] Speaker 03:
Very early in the back and forth on the instructions.

[00:05:15] Speaker 03:
I don't understand what you're saying.

[00:05:17] Speaker 03:
Did Mr. Petzl withdraw it?

[00:05:20] Speaker 03:
He did not withdraw it.

[00:05:21] Speaker 05:
Did he amend it?

[00:05:24] Speaker 05:
Excuse me?

[00:05:24] Speaker 05:
Did he amend it?

[00:05:25] Speaker 05:
He did not amend it.

[00:05:26] Speaker 05:
OK, so early late doesn't matter.

[00:05:28] Speaker 05:
This is his instruction.

[00:05:29] Speaker 03:
Well, I say that because there were various versions of the instructions that went back and forth between the parts.

[00:05:36] Speaker 03:
And the district court adopted Mr. Petzls.

[00:05:39] Speaker 03:
Ultimately,

[00:05:41] Speaker 03:
In the interim, there had been months of back and forth.

[00:05:44] Speaker 03:
These instructions were.

[00:05:45] Speaker 05:
I understand, but Mr. Petzl prevailed in that process and had his version of the instruction given.

[00:05:50] Speaker 03:
Ultimately, the instruction that was initially proposed before the parties hashed out what constitutes a lawful duty.

[00:05:58] Speaker 05:
This is the one the district court adopted.

[00:06:00] Speaker 03:
That's true, Your Honor.

[00:06:01] Speaker 05:
Are you aware of, can you cite me any case

[00:06:06] Speaker 05:
In which, and there may be some, I just haven't found them.

[00:06:11] Speaker 05:
Are there any cases where a court has found plain error for an invited error?

[00:06:20] Speaker 03:
I can't say that I have.

[00:06:22] Speaker 03:
I would say I have not found a case that says, for an invited error of this magnitude, the court cannot grant relief.

[00:06:34] Speaker 03:
Ordinarily, certainly, an invited error is something that the court will not entertain.

[00:06:40] Speaker 01:
I'm not sure I followed this whole colloquy.

[00:06:45] Speaker 01:
Are you saying that the defendant that you represent

[00:06:51] Speaker 01:
uh, proposed the instruction that said it violated his official duty not to use government resources for non official business.

[00:07:02] Speaker 03:
I can't deny that the very first version of the instructions that we jointly proposed by the defendants included that language.

[00:07:10] Speaker 03:
It did.

[00:07:11] Speaker 03:
It did.

[00:07:13] Speaker 03:
In my view, that error, especially given the give and take between the parties and the court over that.

[00:07:21] Speaker 00:
Can you point us to anywhere in the record where Mr. Patel or another one of the defendants were said, and it could be inferred as Mr. Patel joined in the objection, where there was an objection to that particular language that was given.

[00:07:42] Speaker 03:
What I can point you to is docket entry 196, which was one of Brian Bailey's, the co-defendants proposed additional jury instructions.

[00:07:53] Speaker 05:
That instruction- Is that in the joint appendix?

[00:07:55] Speaker 05:
I'm sorry?

[00:07:56] Speaker 05:
Where is that in the joint appendix?

[00:07:58] Speaker 03:
I'm sorry, I don't know that it is in the joint appendix.

[00:08:01] Speaker 03:
But it's a docket 196.

[00:08:05] Speaker 03:
This is Mr. Bailey's

[00:08:08] Speaker 03:
Notice of additional proposed jury instructions.

[00:08:11] Speaker 03:
And I see that I'm nearing the end of my time.

[00:08:14] Speaker 05:
You can keep going.

[00:08:15] Speaker 05:
That's fine.

[00:08:15] Speaker 03:
We're out of time.

[00:08:17] Speaker 03:
This proposal said, lacking any statute regulation or written policy.

[00:08:27] Speaker 03:
I'm sorry.

[00:08:27] Speaker 03:
Let me see.

[00:08:29] Speaker 03:
Oh, here we go.

[00:08:29] Speaker 03:
Courts have not yet grappled with serious factual disputes over whether there exists an official duty or not, as the parties will do in this case.

[00:08:38] Speaker 03:
The Bailey cited Fernandez, which is the case we cite in our brief, the unpublished case out of the 11th Circuit, which is the only one that I've located that actually attempts to define that term, and then proposed a definition of official duty or lawful duty, as lawful duty or official duty means a public official's job responsibilities as dictated by governing statutes, rules, and regulations.

[00:09:03] Speaker 00:
Did your client join that submission?

[00:09:09] Speaker 03:
I would not say that in any type of formal way he joined that submission.

[00:09:14] Speaker 03:
I would say he did not object to that submission.

[00:09:18] Speaker 03:
And these definitions were discussed repeatedly throughout the months preceding the trial.

[00:09:27] Speaker 00:
If I'm understanding that docket entry directly, it suggested that lawful duty and official duty were synonymous.

[00:09:40] Speaker 03:
They certainly, it certainly conflated those terms.

[00:09:44] Speaker 00:
I want to argue now is not the case.

[00:09:46] Speaker 03:
I'm sorry.

[00:09:46] Speaker 00:
What you argue now is not the case.

[00:09:49] Speaker 03:
I think that can't be the case.

[00:09:51] Speaker 01:
I'm sorry, Judge Randall.

[00:09:53] Speaker 01:
I want to change the subject for a moment because I'm not entirely sure I understand what this clear thing is.

[00:10:04] Speaker 01:
And I'm not entirely sure that I'm, I assume that the only thing

[00:10:10] Speaker 01:
that Bailey wanted was the telephone of the individual.

[00:10:15] Speaker 01:
Is that correct?

[00:10:17] Speaker 03:
He wanted contact information, whether it was a telephone number, an address.

[00:10:21] Speaker 01:
Well, the addresses, it would seem to me he had the address because he was talking about

[00:10:26] Speaker 01:
a, you know, apartment building.

[00:10:29] Speaker 01:
Sure.

[00:10:29] Speaker 01:
So that's the address.

[00:10:30] Speaker 01:
Sure.

[00:10:31] Speaker 01:
So the only thing left was that he had any use for was what he was trying to get is the telephone number.

[00:10:39] Speaker 01:
And it's only because of technology that he needed that.

[00:10:44] Speaker 01:
Correct?

[00:10:45] Speaker 01:
It's cell phones.

[00:10:48] Speaker 01:
It could have.

[00:10:49] Speaker 01:
So

[00:10:49] Speaker 01:
One of the analogies that occurs to me anyway is that this is like somebody calling up an FBI agent who has, we used to have the white pages and the yellow page, who has a particular telephone directory and asking, you know, please look up this following number.

[00:11:08] Speaker 01:
I mean, that's all it was.

[00:11:11] Speaker 01:
But the clear,

[00:11:14] Speaker 01:
whatever website, is run by Thomson Reuter.

[00:11:20] Speaker 01:
Where does Thomson Reuter get the information?

[00:11:23] Speaker 03:
Thomson Reuters pulls the information from all types of publicly available.

[00:11:27] Speaker 03:
It's all publicly available.

[00:11:30] Speaker 03:
They describe it as public, and I'm over my time now, if I could continue.

[00:11:36] Speaker 03:
Public and proprietary sources.

[00:11:39] Speaker 03:
It is a private company.

[00:11:41] Speaker 03:
that pulls information from various sources on the internet.

[00:11:45] Speaker 01:
They may not know this, but in fact, we, by we, I mean the judges on our court and our law clerks have such a directory too.

[00:11:56] Speaker 01:
Except it's not Thomson Reuters, it's West.

[00:12:00] Speaker 01:
And there's websites where you can go on, you put the name of a person in there and get all kinds of information about them.

[00:12:07] Speaker 01:
It's the same thing, I think.

[00:12:09] Speaker 01:
And one other point,

[00:12:12] Speaker 01:
At some point in my reading of this, it indicated to me that the statement that official duty not to use government resources for non-official business is itself incorrect.

[00:12:28] Speaker 01:
wholly apart from whether that's a directed verdict by the trial judge, it's not a correct statement of the law.

[00:12:36] Speaker 01:
And the reason is because there are all kinds of exceptions to using government resources.

[00:12:43] Speaker 01:
If somebody places a telephone call to their child or to a friend or on a government phone, that's using government resources, but it's not a violation of official duty.

[00:12:57] Speaker 01:
Is that correct?

[00:12:57] Speaker 03:
Judge Randolph, your points are all well taken.

[00:13:00] Speaker 03:
What happened here was the use of a tool, a government resource, to find information wholly unrelated to the work of the FBI in general, much less to the work of this particular agent.

[00:13:14] Speaker 03:
It's really no different.

[00:13:17] Speaker 00:
How can you say it's unrelated to the work of the FBI?

[00:13:21] Speaker 00:
The FBI has to track down people, witnesses, et cetera.

[00:13:24] Speaker 00:
That's the whole reason

[00:13:25] Speaker 00:
that they have access to it.

[00:13:27] Speaker 00:
Sure, they do.

[00:13:28] Speaker 00:
As a public defender, we had access to similar types of databases, and that's what we used it for, to track down witnesses.

[00:13:38] Speaker 03:
By that logic, anything in the FBI office is used in pursuit of the FBI's mission.

[00:13:44] Speaker 03:
The color copier in the copy room, if used to make a person's flyers for their child's school play in exchange for tickets to the play.

[00:13:56] Speaker 00:
The point of the clear notice and the point of the way that this works is that when Agent Petzl accessed that database, it asked him whether he had a permissible use.

[00:14:13] Speaker 00:
He clicked law enforcement.

[00:14:17] Speaker 00:
has a permissible use and that is how he accessed this data because if he had not clicked law enforcement, he would have not had a permissible use and he would not have had access to the database.

[00:14:32] Speaker 00:
Isn't that the evidence that was presented at trial?

[00:14:34] Speaker 00:
Yes.

[00:14:35] Speaker 03:
That's the terms of the contract between this tool and the FBI.

[00:14:45] Speaker 03:
But listen, I don't dispute that maybe this, he probably shouldn't have done that.

[00:14:52] Speaker 03:
That he shouldn't have used this resource in this way.

[00:14:55] Speaker 03:
But was he on notice that he was going to be convicted of a crime punishable by up to 15 years in prison for looking up contact information in matters wholly unrelated to matters before the FBI?

[00:15:12] Speaker 03:
And in my view, that is an incredibly expansive view of the bribery statute, one that does not give thousands of government employees notice of what's prohibited.

[00:15:26] Speaker 01:
It strikes me as odd that if you take our in-bank decision in Valdez,

[00:15:34] Speaker 01:
that it's pretty clear that there's no real distinction between what this guy did, your defendant did, and what the individual in Valdez did.

[00:15:44] Speaker 01:
The only difference is he was getting license plate numbers, and your client was getting telephone numbers.

[00:15:53] Speaker 01:
But the other difference is that we reverse that fellow's conviction for accepting a gratuity, which is a lesser offense.

[00:16:02] Speaker 01:
But what's going on here

[00:16:04] Speaker 01:
is a conviction for the greater offense.

[00:16:08] Speaker 01:
And that seems to me totally out of kilter.

[00:16:11] Speaker 03:
I think that's a really important point, because the gratuity statute, although it hinges on the definition of official act, is punishable by only up to two years in prison.

[00:16:22] Speaker 03:
Valdez's conviction was reversed.

[00:16:25] Speaker 03:
This defendant was subject to a statute that

[00:16:30] Speaker 03:
was punishable by up to 15 years in prison.

[00:16:33] Speaker 03:
And I don't think you will find any cases in which a person was convicted of bribery for something, doing something wholly unrelated to the decisions, the work, the internal workings of the office.

[00:16:50] Speaker 03:
This was the use of a government resource, for sure.

[00:16:55] Speaker 03:
But was it bribery?

[00:16:57] Speaker 05:
And this was on bank.

[00:17:00] Speaker 05:
Page 1327.

[00:17:01] Speaker 05:
Our decision therefore plainly continues to allow bribery prosecutions when, for example, someone offers something of value to induce an official to provide information in violation of official duty.

[00:17:17] Speaker 05:
Isn't that this case?

[00:17:19] Speaker 03:
I think that's, it is, no.

[00:17:23] Speaker 03:
The information, the term information could be a lot of things.

[00:17:28] Speaker 03:
How do I get to the office?

[00:17:30] Speaker 03:
That's not the information that we're talking about here.

[00:17:32] Speaker 05:
He didn't provide that.

[00:17:33] Speaker 05:
He provided information from an FBI specific database that required him to type in an FBI purpose when he accessed it.

[00:17:42] Speaker 05:
And it was part of his job to deal with technology.

[00:17:44] Speaker 03:
I don't think it's fair to call it an FBI specific database.

[00:17:50] Speaker 03:
It's not a database at all.

[00:17:52] Speaker 03:
It's a contract the FBI had with the provider.

[00:17:58] Speaker 01:
If I were willing to pay for it, I could have that.

[00:18:00] Speaker 05:
Correct.

[00:18:01] Speaker 05:
The difference, the taxpayers paid for it.

[00:18:03] Speaker 05:
And so this guy got something the taxpayers paid for.

[00:18:06] Speaker 05:
He didn't pay for it himself.

[00:18:07] Speaker 05:
Had he paid for it himself, like Judge Randolph suggests, that we would have no case.

[00:18:11] Speaker 05:
But in fact, he let the taxpayers pay for it and pay for this man's salary and pay for this computer.

[00:18:19] Speaker 05:
And then he spent his time typing in a specific code that says, I'm doing this for whatever purpose he did, lawful purpose.

[00:18:27] Speaker 05:
The taxpayer.

[00:18:28] Speaker 05:
As to why he was doing it.

[00:18:30] Speaker 05:
This is a non-bank decision.

[00:18:32] Speaker 05:
I feel like if it says in terms.

[00:18:36] Speaker 05:
I get the Judge Randolph and Judge Henderson had a different view in that case, but I think I'm bound by the on-bank decision.

[00:18:42] Speaker 05:
Ultimately.

[00:18:43] Speaker 05:
And it says, even if the information is publicly available, it still counts.

[00:18:48] Speaker 03:
Well, I, it doesn't count for an official act, which is what Valdez was, but ultimately the misuse of any government resources about official duty.

[00:18:58] Speaker 00:
It is about official duty in the language that judge explained to us why.

[00:19:06] Speaker 00:
that language in Valdez that says our decision therefore plainly continues to allow bribery prosecutions when, for example, someone offers something of value to induce an official to provide information in violation of official duty.

[00:19:26] Speaker 00:
Are you are you saying that that's not really the law of how bribery prosecution works?

[00:19:32] Speaker 00:
Or is it your argument that this was not an official duty?

[00:19:36] Speaker 03:
Exactly that.

[00:19:37] Speaker 03:
That statement turns on what's an official duty, provides information in violation of an official duty.

[00:19:46] Speaker 03:
So you can't just stop at the provides information.

[00:19:50] Speaker 03:
It has to be in violation.

[00:19:52] Speaker 03:
What you argue below is the meaning of official duty.

[00:19:55] Speaker 03:
This was not discussed.

[00:19:58] Speaker 03:
You didn't object below?

[00:19:59] Speaker 03:
Did not.

[00:20:00] Speaker 03:
Did not.

[00:20:01] Speaker 05:
We're hearing for the first time here on up.

[00:20:02] Speaker 03:
Well, I take that back.

[00:20:04] Speaker 03:
I'm sorry.

[00:20:05] Speaker 03:
In terms of the motion for judgment of acquittal, he did argue that under Valdez, the evidence showed that he did not violate an official duty.

[00:20:18] Speaker 03:
Now, there were no proposed definitions.

[00:20:22] Speaker 05:
That's an evidentiary argument.

[00:20:22] Speaker 05:
I'm asking, I thought you were making a legal argument to us now as to what official duty

[00:20:28] Speaker 05:
means that's not an evidentiary argument that was raised below.

[00:20:31] Speaker 05:
So I think this is difficult, right?

[00:20:34] Speaker 05:
Well, this is difficult.

[00:20:37] Speaker 05:
We're on common ground there.

[00:20:39] Speaker 05:
But I don't know how we can decide that this wasn't part of his official duty without a legal definition that you're proposing of what counts as official duty.

[00:20:50] Speaker 05:
What is that?

[00:20:52] Speaker 05:
Where is it in your brief?

[00:20:54] Speaker 03:
Well, I proposed a definition, and that is a duty emanating from his job responsibilities.

[00:21:04] Speaker 03:
But I will say.

[00:21:06] Speaker 05:
One of his duties emanating from his job.

[00:21:09] Speaker 05:
So it's not just his job responsibilities.

[00:21:11] Speaker 05:
It's obligations that emanate from.

[00:21:13] Speaker 05:
Particular to.

[00:21:15] Speaker 05:
Right.

[00:21:16] Speaker 05:
So does that include not using government resources for personal gain?

[00:21:21] Speaker 03:
I would not call that an official duty.

[00:21:23] Speaker 03:
I would call that an ethical responsibility.

[00:21:27] Speaker 03:
What's the difference?

[00:21:30] Speaker 03:
I think there has to be a difference.

[00:21:31] Speaker 00:
Otherwise, as Judge Randolph points out, every single violation of, I came to work late or I didn't, I had a duty to- If we were writing, we have to write an opinion with a rule and help in future cases, judges write jury instructions.

[00:21:53] Speaker 00:
So what would be the rule

[00:21:55] Speaker 00:
for the dividing line between when something is an official duty and merely what you call an ethical duty.

[00:22:02] Speaker 00:
What's more?

[00:22:04] Speaker 03:
I think it has to be something emanating from the office that he holds and relating to his job responsibilities.

[00:22:15] Speaker 01:
That's the purpose of bribery statute.

[00:22:20] Speaker 01:
is designed to punish people who are performing their duties in a way that is adverse to the government, to the public, and everything else, because they're getting money to do it.

[00:22:34] Speaker 01:
And it's hard to see how this, what happened here is an inducement to do something that they would not otherwise have, I mean, it doesn't fit.

[00:22:45] Speaker 01:
I mean, that's the basic problem.

[00:22:47] Speaker 03:
Exactly.

[00:22:49] Speaker 03:
The bribery statute is about corruption.

[00:22:52] Speaker 03:
Corruption of government's functioning, duties, purpose.

[00:22:56] Speaker 03:
This is not that.

[00:22:58] Speaker 03:
And that's the problem here.

[00:23:00] Speaker 05:
And I will say one- I understand.

[00:23:03] Speaker 05:
This is hard.

[00:23:05] Speaker 05:
We can't write opinion that says this is not that.

[00:23:08] Speaker 05:
And we have to have a definition of official duty that is distinct from official act.

[00:23:16] Speaker 05:
Right being induced to do an official act.

[00:23:19] Speaker 05:
Yes.

[00:23:19] Speaker 05:
Right.

[00:23:19] Speaker 05:
So this seems to be a duty seems to be departure from a duty.

[00:23:25] Speaker 03:
And that isn't an official duty is the question.

[00:23:29] Speaker 05:
So I'm still struggling.

[00:23:31] Speaker 05:
And if you can point me where it is in your brief that you tell me what the legal test is you want us to adopt, that would be helpful.

[00:23:38] Speaker 05:
But I don't understand how your proposed distinction writes.

[00:23:43] Speaker 05:
And we're facing a non-bank decision here that tells us this exact prosecution can still go forward.

[00:23:51] Speaker 05:
And you're turning it on official duty.

[00:23:53] Speaker 05:
I get that.

[00:23:56] Speaker 05:
What is your definition of official duty that is distinct from being induced to do

[00:24:01] Speaker 05:
an official act to do something in his job?

[00:24:04] Speaker 03:
Well, I mean, I think that the closest thing we have, and as we suggested, as the 11th Circuit defined it in Fernandez, its ordinary meaning encompasses a public official's job responsibilities.

[00:24:23] Speaker 03:
as dictated by governing statutes, rules, and regulations.

[00:24:27] Speaker 03:
Now, I don't know that that tells us a whole lot.

[00:24:30] Speaker 05:
And I will say, Judge Miller, you said- Did he violate a job responsibility?

[00:24:36] Speaker 03:
He did not.

[00:24:39] Speaker 05:
All you're doing is substituting one word for another.

[00:24:42] Speaker 05:
Responsibilities for duty.

[00:24:44] Speaker 05:
And I get that.

[00:24:45] Speaker 05:
It seems to me I've seen cases of doing job responsibilities, but I've also seen ones that say you have a duty not to commit crimes while doing your job.

[00:24:55] Speaker 05:
I don't know if that's a job responsibility on any paper somewhere, but that also has been defined by courts to be part of

[00:25:02] Speaker 05:
a violation of official duty.

[00:25:05] Speaker 05:
And so if what he did was a criminal action, theft of government property for personal purposes, then that would be a violation of his official duty.

[00:25:17] Speaker 05:
It wasn't that he just did this for a friend.

[00:25:19] Speaker 05:
He took money to do this for a friend.

[00:25:22] Speaker 05:
And so he used government resources to pad his own wallet

[00:25:28] Speaker 05:
But by that logic... So why doesn't he have a duty to only use government resources for government purposes?

[00:25:41] Speaker 03:
By that logic, using the government car, which you can only use to drive to your government responsibilities.

[00:25:48] Speaker 03:
If you use the government car.

[00:25:50] Speaker 05:
I don't know that's true.

[00:25:51] Speaker 05:
I haven't seen what the rules are governing.

[00:25:53] Speaker 05:
They may have a de minimis exception as well.

[00:25:56] Speaker 03:
I can tell you.

[00:25:56] Speaker 03:
Could you finish your answer?

[00:25:58] Speaker 03:
Thank you.

[00:25:58] Speaker 03:
I was a former prosecutor and I knew in our office we could only use the G car to go, for example, to oral arguments.

[00:26:08] Speaker 03:
And on the one time when I said I stopped by to get my haircut on the way to oral argument, I was admonished, you can't do that.

[00:26:15] Speaker 03:
You can only, and I was like, oh, I didn't know that.

[00:26:17] Speaker 03:
I didn't realize that.

[00:26:18] Speaker 03:
Now, if I had instead dropped off a friend at the airport and on the way to the airport, my friend bought me lunch for doing that favor, under that logic, the use of the government resource alone should have put me on notice that I could be convicted of bribery for that.

[00:26:37] Speaker 03:
And I don't see that this statute puts government employees on that notice at that time.

[00:26:44] Speaker 05:
But anyhow, you'd probably be OK.

[00:26:48] Speaker 05:
But my point is that define government.

[00:26:53] Speaker 05:
How do I define what his responsibilities are for me?

[00:26:56] Speaker 05:
If that's your test, job responsibilities.

[00:27:00] Speaker 03:
His job responsibilities are.

[00:27:01] Speaker 05:
In a way that doesn't turn official duty into not doing

[00:27:05] Speaker 03:
It has to be related to the work of the office that he holds, and that is related to the work of the FBI.

[00:27:13] Speaker 05:
But he was also particularly the tech liaison.

[00:27:17] Speaker 05:
He had particular obligations with respect to technology usage.

[00:27:21] Speaker 03:
This has nothing to do with that.

[00:27:23] Speaker 05:
I'm asking, that was his job?

[00:27:24] Speaker 05:
It was, it was.

[00:27:28] Speaker 05:
Was it part of his job to inform other FBI employees about the proper usage of FBI equipment?

[00:27:35] Speaker 03:
It was certainly not with respect to the use of clear.

[00:27:38] Speaker 03:
It was not.

[00:27:39] Speaker 03:
His responsibilities, and honestly, there's not much in the record about what his responsibilities were.

[00:27:45] Speaker 05:
Well, then how do we adopt that as a test and say it wasn't met here?

[00:27:49] Speaker 03:
As my husband always tells me when he says, where is something, and I say,

[00:27:55] Speaker 03:
I don't know where it is.

[00:27:56] Speaker 03:
And he says, well, then you need to look everywhere.

[00:27:57] Speaker 03:
I said, well, I don't need to look here.

[00:27:58] Speaker 03:
He says, well, if you don't know where it is, you don't know where it's not.

[00:28:02] Speaker 03:
This is like that.

[00:28:04] Speaker 03:
We might not know exactly what is an official duty, but we know it's not this.

[00:28:10] Speaker 00:
I'm trying to understand your theory.

[00:28:13] Speaker 00:
Is your theory that it's bribery if

[00:28:19] Speaker 00:
He does something that falls within his job description in exchange for a payment.

[00:28:27] Speaker 00:
But if he does something even using official resources, but that it's really outside of what his job description is, then that falls outside of bribery.

[00:28:40] Speaker 00:
I'm trying to understand the line that you're trying to make.

[00:28:43] Speaker 03:
I think that's probably too narrow because I think if because he's an FBI agent, he reveals secrets about how the FBI works or some type of private information of the FBI that has nothing to do with his particular role.

[00:29:02] Speaker 03:
I think the bribery statute would cover that.

[00:29:04] Speaker 03:
And I think there's plenty of cases in which things like that have happened.

[00:29:06] Speaker 03:
I'm sorry.

[00:29:07] Speaker 05:
You're confused now.

[00:29:07] Speaker 05:
You just described to me something that is not in his job responsibilities.

[00:29:10] Speaker 05:
You said it was outside of his particular role.

[00:29:12] Speaker 05:
And if he did it, it would be bribery.

[00:29:16] Speaker 03:
I think it would have to be.

[00:29:18] Speaker 03:
It's related to his role at the FBI.

[00:29:23] Speaker 03:
Otherwise, if the receptionist at the FBI office reveals information about that, it can't be.

[00:29:28] Speaker 05:
I want to go back to the example you just gave.

[00:29:32] Speaker 05:
I had thought your argument was it's only bribery if he does something he shouldn't do within the scope of his duties.

[00:29:45] Speaker 05:
But then the example you just gave was he goes way outside his own duties and does something wrong that would be bribery.

[00:29:53] Speaker 05:
But the duties emanate.

[00:29:54] Speaker 05:
Did I misunderstand you?

[00:29:57] Speaker 03:
Well, I'm not sure I can answer that.

[00:30:00] Speaker 05:
Why don't you give me an example?

[00:30:01] Speaker 05:
Try an example again of what would be bribery, because it would be a deviation from his job responsibilities, if that's your test.

[00:30:15] Speaker 03:
OK.

[00:30:16] Speaker 03:
He's not a field agent.

[00:30:17] Speaker 03:
He doesn't do things with respect to investigations.

[00:30:22] Speaker 03:
But he goes into a friend's office, and he looks at

[00:30:28] Speaker 03:
on paperwork or finds the name of an informant or something and sells that information.

[00:30:33] Speaker 03:
That's related to the work of the FBI.

[00:30:36] Speaker 03:
That's a private secret matter.

[00:30:38] Speaker 03:
If he sells that information, that's bribery.

[00:30:41] Speaker 05:
Okay, but then, so then your definition of official duty is something that's not part of his job responsibilities.

[00:30:50] Speaker 05:
If he goes outside his job responsibilities,

[00:30:54] Speaker 05:
and the responsibilities, I'm sorry.

[00:30:56] Speaker 05:
I gotta pin this down.

[00:30:57] Speaker 05:
I have completely misunderstood what you said before.

[00:30:59] Speaker 05:
So your vision of official duty is things that are outside your job responsibilities that you do for money.

[00:31:07] Speaker 03:
I mean, I think they could be.

[00:31:10] Speaker 03:
I just think it has to be.

[00:31:12] Speaker 03:
This is about corruption of government.

[00:31:13] Speaker 05:
So then is your theory then, if he does something within his job responsibilities, it's not bribery?

[00:31:21] Speaker 03:
Oh no, of course it's bribery.

[00:31:23] Speaker 05:
Well then the things in his job responsibilities and outside his job responsibilities are both... It has to depend on what those things are.

[00:31:31] Speaker 05:
Well then that's not a legal test.

[00:31:33] Speaker 05:
I'm sorry, I understand that it's your job to argue that this doesn't count, whatever the test is, but we can't write an opinion that says, whatever the test is, this doesn't count.

[00:31:44] Speaker 05:
We have to have some sense of what the statutory term means, and it has to be so clear that it justifies departing from this en banc.

[00:31:53] Speaker 05:
language so if you've said if he does something he shouldn't do as part of his job responsibilities that's bribery and if he does something that's not part of his job responsibilities that's bribery i don't not sure i know what's left my proposal is that the duties have to emanate from the position he holds and from the place that he that he works access to this clear database

[00:32:21] Speaker 05:
Was that, did he have access to that because he worked at the FBI?

[00:32:26] Speaker 05:
He did.

[00:32:26] Speaker 05:
Okay.

[00:32:27] Speaker 05:
And that was the only reason he had access to this information.

[00:32:32] Speaker 05:
That's true.

[00:32:32] Speaker 05:
Okay.

[00:32:33] Speaker 05:
And was this database one that was only to be used by FBI agents as part of their work?

[00:32:40] Speaker 05:
Because they had to type in a code for what they were doing.

[00:32:42] Speaker 03:
Well, it's not a database.

[00:32:46] Speaker 03:
It's a tool.

[00:32:47] Speaker 03:
It's a tool.

[00:32:49] Speaker 05:
It's a program that leads to information.

[00:32:52] Speaker 03:
It's an information amalgamator that allows you to search like Westlaw.

[00:32:57] Speaker 05:
I'm back to my point.

[00:32:58] Speaker 05:
He only had access because of his position in the FBI.

[00:33:01] Speaker 05:
Do you agree with that?

[00:33:02] Speaker 05:
Yes.

[00:33:03] Speaker 05:
The FBI requires any agent using it to identify an FBI purpose for doing so.

[00:33:10] Speaker 05:
Correct?

[00:33:10] Speaker 05:
Correct.

[00:33:12] Speaker 05:
Why is that not a duty?

[00:33:14] Speaker 05:
Why is that not something that he can only do because of his position as an FBI agent and can only be used as part of FBI work?

[00:33:24] Speaker 03:
It's a specific kind of duty.

[00:33:27] Speaker 03:
And I think the misuse of a resource like this resource, just like any other resource, is an ethical violation.

[00:33:35] Speaker 03:
It is.

[00:33:35] Speaker 00:
So let's suppose his friend asked him

[00:33:43] Speaker 00:
I'd really like to know whether there's any wiretaps on my phone or whether I'm being investigated.

[00:33:51] Speaker 00:
And so what Agent Petzl is alleged to have done is to have accessed FBI databases that list all wiretaps, all investigations, et cetera.

[00:34:10] Speaker 00:
And he does that search.

[00:34:13] Speaker 00:
and he reveals to his friend that there is indeed a tap on his phone.

[00:34:22] Speaker 00:
He and his friend asks him, tells him he'll give him five grand for doing the search and telling him, is that bribery?

[00:34:31] Speaker 03:
I think everyone in this room would agree that it is.

[00:34:34] Speaker 00:
So what is the difference between

[00:34:40] Speaker 00:
that hypothetical in what happened here as far as the dividing line between what's bribery and what's not.

[00:34:51] Speaker 03:
Because what that would be would be the corruption of the function of the FBI.

[00:34:56] Speaker 03:
What happened here was not.

[00:34:58] Speaker 03:
It had nothing to do with the function of the FBI.

[00:35:02] Speaker 00:
So if his friend in this case said, you know, there's this apartment building

[00:35:10] Speaker 00:
and I wanna try to buy the TOPA rights from all the tenants, but I don't know who all of them are or how to contact them.

[00:35:21] Speaker 00:
I'll give you $5,000 to do that.

[00:35:24] Speaker 00:
And what he does is he goes door to door and flashes his FBI credentials.

[00:35:32] Speaker 00:
And says he's conducting some sort of investigation and he gets the name and phone number and apartment number of everybody in the building and then gives that to his friend.

[00:35:45] Speaker 00:
Is that bribery.

[00:35:46] Speaker 03:
Could a jury find that to be bribery?

[00:35:49] Speaker 03:
I think a jury could probably find that any definition of official duty, any, any official, any FBI agent who misuses his badge for private purposes, I think could be found that that could fit.

[00:36:03] Speaker 00:
So miss using your badge or private purposes would be in violation of his official duty.

[00:36:12] Speaker 03:
I think it would be reasonable for a jury to find that.

[00:36:16] Speaker 05:
I'm sorry.

[00:36:17] Speaker 05:
I want you to answer Judge Wilkins' question, but that seems to be dodging the question.

[00:36:21] Speaker 05:
That is part of your official duties.

[00:36:25] Speaker 05:
It's how you use your badge.

[00:36:28] Speaker 00:
I mean, I guess the better answer for what I'm trying to get at is, are you saying that we would rule as a matter of law?

[00:36:40] Speaker 00:
can't be an official duty.

[00:36:42] Speaker 00:
What you're trying to do is say legally what can and can't be an official duty.

[00:36:48] Speaker 00:
So are you saying that yes, legally that could be an official duty if the jury

[00:36:54] Speaker 00:
So concluded or you saying that what happened here.

[00:36:57] Speaker 00:
No, no, no, no.

[00:36:58] Speaker 00:
My hypothetical been going door to door and getting collecting information on each tenant.

[00:37:05] Speaker 00:
Or are you saying that that if those were the facts and he were found guilty, we would have to set aside that conviction because that couldn't be a violation of official duty.

[00:37:19] Speaker 03:
I think I would probably not be here arguing a sufficiency of the evidence deficit in that situation.

[00:37:28] Speaker 00:
So what is the difference kind of legally help us understand the difference legally between him doing that and him accessing this database?

[00:37:39] Speaker 03:
Again, I think it comes back to corruption and what corruption is and what the purpose of the bribery statute is.

[00:37:47] Speaker 05:
How do you put your badge number in to access the clear database?

[00:37:52] Speaker 05:
I don't know the answer to that, but I don't think so.

[00:37:56] Speaker 05:
So misuse of badge is not an official duty.

[00:38:00] Speaker 05:
You don't define it based on that.

[00:38:04] Speaker 03:
What any particular officials official duties are is very dependent on where they work and what they do and that's why this is really difficult to put a definition on and I and I get that and that's why I come here saying whatever that definition is.

[00:38:22] Speaker 03:
He did not violate an official duty here.

[00:38:26] Speaker 05:
Well, you can't say that because of the definition is the one from our on bank decision in Valdez.

[00:38:30] Speaker 05:
He did.

[00:38:31] Speaker 05:
And that's why I think we're pushing you.

[00:38:33] Speaker 05:
It's really hard for somebody to come here and go, I don't know what the test is, but just please say my client didn't violate it.

[00:38:39] Speaker 05:
Well, Judge, Judge, you know, attorneys to give us what the legal test should be.

[00:38:43] Speaker 03:
And respectfully, Valdez does not define what is an official duty.

[00:38:48] Speaker 03:
It does not.

[00:38:49] Speaker 05:
Well, but they definitely said something that's a violation of official duties.

[00:38:54] Speaker 05:
They did say that, and that is getting something of value or disclosing information.

[00:39:01] Speaker 03:
In violation of an official duty.

[00:39:03] Speaker 03:
It leaves that question completely open.

[00:39:05] Speaker 05:
It will allow bribery prosecution for violating your official duty when you accept something for value.

[00:39:13] Speaker 05:
to violate your official duty.

[00:39:15] Speaker 05:
No, that's what they're saying.

[00:39:17] Speaker 05:
It would be a bribery prosecution for violating official duty if you do this.

[00:39:26] Speaker 03:
But the quid pro quo has to be to violate the official duty.

[00:39:30] Speaker 03:
That can't be written out.

[00:39:31] Speaker 03:
And they're saying this is an example of that.

[00:39:34] Speaker 03:
I don't read it that way.

[00:39:36] Speaker 03:
I read it as,

[00:39:38] Speaker 03:
Providing information in violation of your official duty is bribery.

[00:39:44] Speaker 05:
And I think that... Explain to me in simple English why providing this information from an FBI specific database that required an FBI specific justification that only FBI agents could access.

[00:40:00] Speaker 05:
And this guy Bailey could not.

[00:40:03] Speaker 05:
why that information, just explain to me why that was not, disclosure of that did not violate an official duty.

[00:40:13] Speaker 03:
I go back to the purpose of the bribery statute.

[00:40:17] Speaker 05:
I know what the purpose is of coercion.

[00:40:20] Speaker 05:
We're just going in circles here.

[00:40:21] Speaker 05:
Coercion, bribery is a form of coercion.

[00:40:24] Speaker 05:
So just saying it's not bribery does not tell me your understanding of why this information

[00:40:30] Speaker 05:
is not the type of information.

[00:40:32] Speaker 05:
You've agreed that other types of information.

[00:40:34] Speaker 05:
If Bailey had said, can you please get for me contact information, phone number, apartment number, for X person, because they owe me money, and they're avoiding me.

[00:40:54] Speaker 05:
I'm going to get my money.

[00:40:55] Speaker 05:
I want to get my money.

[00:40:57] Speaker 05:
And there's a bribe.

[00:40:59] Speaker 05:
That be a violation of official duty?

[00:41:01] Speaker 05:
I don't think so.

[00:41:02] Speaker 05:
I think if this vetting a crime, no.

[00:41:07] Speaker 05:
He said I'm going to beat the person up, get it for me.

[00:41:08] Speaker 05:
So I'm going to find him and beat him up.

[00:41:09] Speaker 05:
That would be.

[00:41:12] Speaker 05:
I use the same database to get the same information because I want to find this person, have him either give me the money or I'm going to beat him up.

[00:41:19] Speaker 05:
Would that be a violation of official duty?

[00:41:22] Speaker 03:
I think the dude that a law enforcement officer

[00:41:27] Speaker 03:
probably has an official duty not to be aid in a better crime.

[00:41:32] Speaker 03:
So I think I could agree with you that that could be a violation of an official duty.

[00:41:37] Speaker 05:
OK, so the only difference here is that it was being used to give this person an unfair advantage in the TOPA scheme for hunting down people to get their rights from them.

[00:41:49] Speaker 05:
That's what makes it not an official duty.

[00:41:51] Speaker 05:
Not a crime.

[00:41:52] Speaker 05:
It's not a crime.

[00:41:53] Speaker 05:
I understand.

[00:41:55] Speaker 05:
Well, that begs the question.

[00:41:58] Speaker 00:
You're saying that because the ultimate use of the information wouldn't facilitate a crime, that should be kind of mitigated against it being in violation of official duty.

[00:42:11] Speaker 00:
Is that what you're saying?

[00:42:12] Speaker 03:
Well, that and the purpose that was

[00:42:19] Speaker 01:
for the request.

[00:42:21] Speaker 01:
Or the detection of the crime.

[00:42:23] Speaker 01:
It's not just, it can't be just the preventing the detection of the crime would seem also to be covered by your definition.

[00:42:37] Speaker 03:
Yes.

[00:42:37] Speaker 03:
And I'm sorry, Judge Miller, that I don't seem to be answering your questions.

[00:42:43] Speaker 03:
As I said, this is a really challenging area because the statute

[00:42:48] Speaker 03:
And I guess I need to point out here that the statute also has this whole lawful duty term.

[00:42:56] Speaker 03:
It has to mean something different than official duty.

[00:42:59] Speaker 03:
When you propose a definition for that, which the district court adopted.

[00:43:02] Speaker 03:
Correct.

[00:43:03] Speaker 03:
I don't think you've got a definition for that.

[00:43:04] Speaker 03:
And I'm not disputing that.

[00:43:06] Speaker 03:
I'm just saying that there has to be a difference between lawful duty and official duty.

[00:43:12] Speaker 03:
And a lot of what we've been talking about here today and a lot of the back and forth have been

[00:43:18] Speaker 03:
duties that emanate from laws, from ethical regulations and other things, but not necessarily from the particular job responsibilities and role of this person.

[00:43:31] Speaker 05:
If the statute said lawful duty instead of official duty, would there have been a violation here?

[00:43:36] Speaker 05:
I think there could have been.

[00:43:38] Speaker 05:
I do.

[00:43:38] Speaker 05:
Why would Congress write a statute that makes it a crime for someone to bribe an official to violate

[00:43:48] Speaker 05:
this rule against misuse of public property, because that would be a lawful duty, but not make that same action a crime for the official to accept.

[00:44:01] Speaker 05:
that money and do the requested conduct.

[00:44:03] Speaker 03:
I can't answer that question.

[00:44:05] Speaker 05:
I mean, all I can say is Congress used Congress has to be different than official, but then that's a lack of parallelism in that.

[00:44:13] Speaker 03:
Well, that's actually, I mean, that's just a well established principle of statutory construction that if a term is used in one part of the statute and a different term is used in another part of the statute, they cannot mean the same thing.

[00:44:25] Speaker 00:
Help me understand this.

[00:44:26] Speaker 00:
So the jury found

[00:44:32] Speaker 00:
convicted on count four, I think, was the lawful duty count, right?

[00:44:39] Speaker 00:
And they were instructed a lawful duty as any statutory, regulatory, or official duty imposed upon and made known either orally or in writing by virtue of and specific to her position.

[00:45:03] Speaker 00:
if if instead of giving that instruction just for count four the judge had given the same instruction count five but it said an official duty is any statutory regulatory or official duty

[00:45:22] Speaker 00:
imposed upon and made known either orally or in writing by virtue of and specific to her position.

[00:45:31] Speaker 00:
Would that instruction have been error?

[00:45:34] Speaker 00:
I think it probably would have with respect to official duty.

[00:45:37] Speaker 00:
Why?

[00:45:38] Speaker 00:
Too broad.

[00:45:39] Speaker 03:
It's too broad.

[00:45:40] Speaker 03:
It's too broad.

[00:45:41] Speaker 00:
Too broad.

[00:45:42] Speaker 00:
Why?

[00:45:42] Speaker 00:
What is the part of it that is too broad?

[00:45:45] Speaker 03:
Anything made known in terms of

[00:45:50] Speaker 03:
It covers too much.

[00:45:52] Speaker 00:
It doesn't.

[00:45:53] Speaker 00:
Imposed upon and made known either orally or in writing.

[00:45:59] Speaker 00:
So what's the problem with made known?

[00:46:03] Speaker 00:
I mean, you need to have notice, right, that whatever it is is your official duty.

[00:46:09] Speaker 00:
Yeah.

[00:46:09] Speaker 00:
So what's the problem?

[00:46:10] Speaker 03:
Yeah.

[00:46:11] Speaker 03:
I'm looking at that definition now.

[00:46:15] Speaker 03:
And so your question is, if it had said

[00:46:19] Speaker 03:
official duty is any statutory regulatory or I don't know what the last word would have been imposed upon.

[00:46:26] Speaker 03:
I mean, I believe that definition is probably again too vague because I think it includes ethical violations that no reasonable government employee would be on notice could result in a bribery conviction.

[00:46:45] Speaker 05:
It's not just that the regulation or the information that you're told is what causes a bribery.

[00:46:51] Speaker 05:
It's that you took money from somebody not to do it.

[00:46:55] Speaker 05:
Why isn't that bribery?

[00:46:56] Speaker 05:
It may not be worth a ton of money, but the violation of duty here was I took money to do something I knew I wasn't supposed to do.

[00:47:09] Speaker 05:
And I could only do it because of my position, by virtue of my position.

[00:47:13] Speaker 05:
Why isn't, I don't know, you keep acting like it's, oh, it's fine, taking pencils home from work.

[00:47:17] Speaker 03:
I don't think it's fine.

[00:47:18] Speaker 03:
I don't think it's fine.

[00:47:20] Speaker 05:
The bribery here is, unlike fortuities that come sort of as rewards after the fact, this is upfront quid pro quo.

[00:47:29] Speaker 05:
I will pay you money to do this thing that you can only do because of your official position.

[00:47:36] Speaker 05:
and you know you're not supposed to do it.

[00:47:38] Speaker 05:
I don't understand what the great concern is that that is some travesty of law to make that unlawful.

[00:47:45] Speaker 05:
Don't take money to do things in your official position that you're not supposed to do and you know you're not supposed to do.

[00:47:51] Speaker 05:
There's no question of knowledge or intent here.

[00:47:53] Speaker 03:
Ultimately, I don't think that the bribery statute is intended to criminalize the violation, the misuse of every single government resource that has- Not the misuse.

[00:48:07] Speaker 05:
It is taking money.

[00:48:10] Speaker 05:
Right.

[00:48:11] Speaker 05:
In exchange- To misuse it and using your position to do something in exchange.

[00:48:17] Speaker 05:
You're selling your position.

[00:48:19] Speaker 05:
You're selling your access.

[00:48:22] Speaker 05:
You're selling your capacity to do something that others can't do.

[00:48:26] Speaker 05:
But you're selling out the taxpayers.

[00:48:28] Speaker 03:
The statute is not just about money.

[00:48:30] Speaker 03:
It's anything of value.

[00:48:31] Speaker 05:
That's fine.

[00:48:33] Speaker 05:
All right, it's a diamond ring, whatever it is.

[00:48:35] Speaker 05:
You keep saying they don't want to make it bribery because all they did was violate a little ethical duty.

[00:48:40] Speaker 05:
It's not that.

[00:48:41] Speaker 05:
It's that they took money.

[00:48:43] Speaker 05:
They had an upfront agreement, a quid pro quo agreement to do something that he could only do because of his position.

[00:48:52] Speaker 03:
There was a quid pro quo agreement for him to use a resource that he had as an FBI agent.

[00:48:59] Speaker 05:
No, to use a resource the FBI had.

[00:49:03] Speaker 03:
But unrelated to anything, any secrets of the FBI, any work of the FBI.

[00:49:10] Speaker 01:
So if what happened here instead was simply that this FBI agent gave one telephone number

[00:49:21] Speaker 01:
to Mr. Bailey and then Mr. Bailey in response bought him lunch as a 15 year felony under that theory.

[00:49:30] Speaker 01:
That's crazy.

[00:49:31] Speaker 05:
That's completely my point.

[00:49:34] Speaker 03:
If Mr. Bailey said to him, hey Dave, I'll take you out to lunch if you can get me this guy's number.

[00:49:39] Speaker 03:
Is that bribery?

[00:49:41] Speaker 03:
I don't think, I just don't think that's what this statutory.

[00:49:46] Speaker 00:
So do you agree or concede

[00:49:50] Speaker 00:
that he violated the statute, the Graham Leach Lydley Act.

[00:49:58] Speaker 00:
I don't know.

[00:49:59] Speaker 00:
To access this information if he accessed it without a permissible view.

[00:50:06] Speaker 03:
I'm not sure that he accessed any information in violation of that act.

[00:50:12] Speaker 00:
I mean, that's the whole point.

[00:50:15] Speaker 00:
compliance with that act is why you have to click that you have a permissible use.

[00:50:21] Speaker 00:
Because if you don't have a permissible use, then you're in violation of that statute.

[00:50:27] Speaker 03:
Well, you're in violation of the terms of the FBI's contract with clear.

[00:50:33] Speaker 01:
The Supreme Court, the sun diamond, seems to me, answers a good many questions that have been asked today.

[00:50:42] Speaker 01:
And one of the questions, or one series of questions, was addressed by Judge Williams in the in-fact opinion for our court.

[00:50:53] Speaker 01:
When he interpreted sun diamond to mean that the court rejected

[00:50:58] Speaker 01:
the theory that the official acts definition covers any action taken in an official capacity.

[00:51:08] Speaker 01:
So the fact that Mr. Heitzel was an FBI agent acting in his official capacity is not enough.

[00:51:19] Speaker 03:
He was not.

[00:51:21] Speaker 03:
That's just not what happened here.

[00:51:23] Speaker 03:
That was the gratuity statute, right?

[00:51:24] Speaker 03:
It was.

[00:51:25] Speaker 03:
It was.

[00:51:26] Speaker 03:
But again, when I get back to these gratuity statutes cases, those are all two-year penalties.

[00:51:33] Speaker 05:
Yes, because you don't have a quid pro quo.

[00:51:35] Speaker 03:
You don't have a quid pro quo.

[00:51:36] Speaker 03:
But all of those cases are about duties tied to the work of the agent, the person, the HUD official, the inspector, corruption in the function of government.

[00:51:49] Speaker 03:
And that's not this.

[00:51:50] Speaker 05:
And just to clarify one more thing, we've had a helpful discussion here.

[00:51:56] Speaker 05:
But I think you agree that you did not raise this argument in district court.

[00:52:02] Speaker 03:
The sufficiency argument?

[00:52:04] Speaker 05:
No, what the meaning of official duty is.

[00:52:09] Speaker 03:
That's true.

[00:52:11] Speaker 05:
Thank you.

[00:52:13] Speaker 05:
All right.

[00:52:13] Speaker 03:
Thank you very much.

[00:52:14] Speaker 03:
I appreciate the time.

[00:52:15] Speaker 03:
We'll give you some time for rebuttals.

[00:52:16] Speaker 05:
Thank you very much.

[00:52:32] Speaker 06:
Thank you, Your Honors.

[00:52:32] Speaker 06:
May it please the court?

[00:52:33] Speaker 06:
Katherine Kelly on behalf of the United States.

[00:52:36] Speaker 06:
Your Honor, in this case, it's clear that this is very similar to the Valdez case in which this court indicated very strongly that same type of actions taken by an MPD agent giving a friend information from a database from MPD in return for money is essentially the same thing that happened here.

[00:52:58] Speaker 06:
There was, again,

[00:53:02] Speaker 06:
database the FBI had, Mr. Bailey offered him money to look up tenant information and Mr. Petzl then used that database to do so.

[00:53:13] Speaker 05:
Is that a violation of law or just a contract?

[00:53:17] Speaker 06:
It's a violation of his duties as an FBI agent.

[00:53:22] Speaker 05:
Judge Wilkins mentioned the Graham-Lyley statute.

[00:53:27] Speaker 05:
Is there a statutory prohibition?

[00:53:29] Speaker 06:
There's a statutory prohibition to using information in the CLEAR database for other than authorized purposes.

[00:53:36] Speaker 06:
So going into the database, you have to check that you're using it under that Graham-Lyley statute or two other statutes and then give permissible purposes for each.

[00:53:47] Speaker 01:
Statutory?

[00:53:49] Speaker 06:
What's the statute?

[00:53:50] Speaker 06:
It's about the use of personal information.

[00:53:53] Speaker 00:
There's another one.

[00:53:55] Speaker 00:
I think it's the, it's like a Motor Vehicle Drivers Act because it has information in there from DMV database.

[00:54:05] Speaker 06:
That's correct.

[00:54:05] Speaker 06:
And I believe there was another section about voter registration information as well.

[00:54:10] Speaker 06:
So.

[00:54:13] Speaker 06:
We said at trial that those were showing that he was acting corruptly by going into the database and checking off that it was under one of those conditions and then citing a permissible purpose before logging in.

[00:54:27] Speaker 06:
We based his official duties more on Mr. Adaroba's testimony, his supervisor, and the regulations about the conduct of an FBI agent.

[00:54:37] Speaker 01:
What were the duties that you had to check off?

[00:54:41] Speaker 01:
In order to get into the well, not in order to, I mean, but you had to answer the question.

[00:54:48] Speaker 01:
What was the check off?

[00:54:50] Speaker 01:
And who devised that?

[00:54:51] Speaker 01:
Was it Thompson Reuters?

[00:54:54] Speaker 06:
I don't know who devised it.

[00:54:56] Speaker 01:
It may not have been the FBI.

[00:54:59] Speaker 01:
It may have been the private company.

[00:55:02] Speaker 06:
It wasn't clearly laid out at trial who actually made the login screen.

[00:55:08] Speaker 05:
Compliance with statutory obligations.

[00:55:10] Speaker 01:
What were the three things that you had to check on?

[00:55:16] Speaker 06:
You had to check in, if I'm recalling correctly, that you were searching under the Gramlichy Blyley

[00:55:24] Speaker 06:
statute or if you were going to get voter information, you would have to check off that you were going into that section or the DMV section.

[00:55:32] Speaker 06:
Anytime you checked off those, then there would be another list of permissible purposes.

[00:55:39] Speaker 06:
For instance, the one.

[00:55:40] Speaker 06:
Investigation was one.

[00:55:43] Speaker 01:
I remember that.

[00:55:44] Speaker 06:
There was one, and I'm sorry, I'm not remembering the exact wording of each permissible purpose, but essentially you were doing it for federal, state, or local law enforcement reason, if I recall.

[00:55:54] Speaker 01:
What is the difference between that database and WALES?

[00:55:59] Speaker 06:
My understanding from what was stated at trial is that it's an aggregator of a lot of information that you can get from other sources.

[00:56:07] Speaker 01:
WALES contains a lot of non-public information.

[00:56:12] Speaker 01:
correct about somebody's criminal history and so forth.

[00:56:16] Speaker 01:
It's just an aggregation of public information.

[00:56:18] Speaker 06:
It was an aggregator of public information and the version that was set up specifically for the FBI, which is maybe how the specifics about the various DM motor vehicle statutes and voter statutes came about was done specifically for the FBI.

[00:56:36] Speaker 06:
I don't know who came up with the language.

[00:56:37] Speaker 05:
I would assume if you're getting voting records or DMV information, you're getting access to

[00:56:42] Speaker 05:
Non-public information, social security numbers.

[00:56:46] Speaker 06:
I know there was social security numbers available because part of the information at issue was.

[00:56:51] Speaker 05:
Right, so it's not all public information.

[00:56:53] Speaker 06:
It's not, not everything in it is public.

[00:56:55] Speaker 05:
But it's not public information for sure.

[00:56:57] Speaker 06:
And I recall also in the FBI version, there was information about people's.

[00:57:04] Speaker 01:
This is a private company.

[00:57:05] Speaker 01:
How do they get social security numbers?

[00:57:07] Speaker 01:
It has to be public.

[00:57:09] Speaker 01:
They can get them from accrediting companies.

[00:57:11] Speaker 05:
exactly your honor they can they can pay for proprietary information correct and there was a discussion about experience and trans union and so forth being accessible to an ordinary member of the public unless they're paying for this database i guess right right and i assume when people have access to this database are there laws that govern

[00:57:33] Speaker 05:
confident maybe that's what this process is of checking the boxes that they're not taking social security numbers and doing identity theft.

[00:57:40] Speaker 06:
Right, I mean ultimately what you're doing and you're logging into CLEAR, you're checking these permissible purposes.

[00:57:44] Speaker 06:
The permissible purpose are related to an FBI.

[00:57:48] Speaker 01:
How can you say that's right when the CLEAR is available, versions of CLEAR are available to private parties who are members of the public if they pay the fee.

[00:58:02] Speaker 01:
Right?

[00:58:04] Speaker 06:
And then there was also, the FBI had its own version.

[00:58:07] Speaker 01:
I know, but you don't know whether the version of CLEAR that is available to somebody who wants to pay for it also contains social security numbers.

[00:58:20] Speaker 01:
I don't know.

[00:58:21] Speaker 01:
You don't know.

[00:58:21] Speaker 01:
So when you say that yes, the FBI had exclusive, it's exclusive to the FBI to have a database with social security numbers on it,

[00:58:33] Speaker 01:
You don't know that.

[00:58:34] Speaker 06:
No, I know.

[00:58:35] Speaker 06:
And I did not mean to say that the FBI had exclusive.

[00:58:39] Speaker 06:
I'm sorry, Your Honor, that I misspoke.

[00:58:41] Speaker 05:
But my point was that the FBI had its own version, had a different version of this database than, you know, I could go buy in my private capacity.

[00:58:51] Speaker 06:
I don't think you could buy the FBI version in your private capacity.

[00:58:54] Speaker 06:
But what was really made clear at trial through Mr. Adiroba's testimony.

[00:58:58] Speaker 06:
Actually, I'm not clear on that.

[00:59:00] Speaker 05:
There's an FBI-specific version of this database.

[00:59:03] Speaker 05:
That's my understanding from the testimony.

[00:59:05] Speaker 05:
The company X couldn't buy.

[00:59:06] Speaker 05:
They could buy a different version.

[00:59:07] Speaker 05:
They could buy a different version.

[00:59:09] Speaker 05:
And do we know what was special about the FBI version?

[00:59:12] Speaker 06:
I recall the witness from Thomson Reuters indicating that there was specialized information about criminal history and whether or not someone was incarcerated and so forth.

[00:59:26] Speaker 01:
But ultimately... That's not private information.

[00:59:29] Speaker 01:
whether you can go on the Bureau of Prisons website, I've done it.

[00:59:33] Speaker 01:
You can do that, right?

[00:59:35] Speaker 01:
Yeah.

[00:59:35] Speaker 01:
And you can find out whether somebody's incarcerated or not.

[00:59:38] Speaker 06:
But the whole point though was that what was made very clear at trial is that as Mr. Arroba testified and as Agent Walts testified, you could not use the FBI version that you were allowed access to as a special agent

[00:59:54] Speaker 06:
for anything other than FBI purposes.

[00:59:57] Speaker 06:
And it's very clear what Mr. Petzl did here was not for FBI purposes.

[01:00:01] Speaker 05:
You mentioned the DMV and the voter information.

[01:00:04] Speaker 05:
What does the gram, why they leach?

[01:00:07] Speaker 05:
What kind of information does that one cover?

[01:00:10] Speaker 06:
I'm recalling correctly.

[01:00:11] Speaker 06:
I believe it's just privately, personally identifying information, but I'm not absolutely certain as I stand here.

[01:00:20] Speaker 00:
But the testimony at trial was that

[01:00:25] Speaker 00:
There were different permissible uses, and you had to pick at least one.

[01:00:30] Speaker 00:
Correct.

[01:00:31] Speaker 00:
You had to pick more than one.

[01:00:35] Speaker 00:
And to access this information, he clicked law enforcement.

[01:00:42] Speaker 06:
Correct.

[01:00:43] Speaker 00:
Yeah, he did several.

[01:00:44] Speaker 00:
If he hadn't have clicked that and hadn't clicked any other permissible use, then he would not have been able to access

[01:00:53] Speaker 00:
The data, right?

[01:00:54] Speaker 00:
That's correct.

[01:00:55] Speaker 00:
The search function wouldn't have worked.

[01:00:57] Speaker 00:
Correct.

[01:00:57] Speaker 00:
You wouldn't have been able to go further.

[01:00:59] Speaker 00:
Right.

[01:00:59] Speaker 00:
It's kind of like having to agree the terms and conditions or something before you can go further on a website.

[01:01:06] Speaker 00:
Exactly, Your Honor, yes.

[01:01:08] Speaker 06:
So he couldn't have gotten to the information at all.

[01:01:10] Speaker 00:
So he had to make a representation that he had a law enforcement use in order to access the data.

[01:01:20] Speaker 01:
That's correct.

[01:01:21] Speaker 00:
Yes.

[01:01:22] Speaker 01:
Go back 50 years and two friends call each other.

[01:01:29] Speaker 01:
One of them calls the other.

[01:01:30] Speaker 01:
There's an FBI agent says, hey Joe, I've lost my telephone directory.

[01:01:34] Speaker 01:
Will you look a number up for me?

[01:01:37] Speaker 01:
Is that a violation of his official duty if he did that?

[01:01:41] Speaker 01:
No, it's not.

[01:01:43] Speaker 01:
What's the difference?

[01:01:44] Speaker 01:
The difference is this is... Forget about the money.

[01:01:48] Speaker 01:
Because we have to first of all find out whether this is a violation of official duties.

[01:01:53] Speaker 01:
And then the question about whether it was done for money is another.

[01:01:57] Speaker 01:
But why isn't, what's the difference?

[01:02:00] Speaker 06:
In the phone book example, the agent is not using something that is specifically only available to the FBI, such as the clear database was here.

[01:02:10] Speaker 06:
that is only allowed to be used for official purposes.

[01:02:13] Speaker 01:
See, that's the question we're going around in circles here, because we don't know.

[01:02:17] Speaker 01:
And there was no evidence in trials so far as I'm aware that this is only something available to the FBI, the telephones, which is all that they wanted.

[01:02:27] Speaker 01:
We don't know that.

[01:02:29] Speaker 05:
I thought you said there was a Thompson Reuters witness who said this was an FBI

[01:02:33] Speaker 05:
specific that was accessed here.

[01:02:36] Speaker 01:
That's right.

[01:02:37] Speaker 01:
We don't know whether the ones that are for sale contain telephones.

[01:02:44] Speaker 06:
There was no information in the record as exactly what would be in a different database versus this one.

[01:02:49] Speaker 06:
There's no question that there was publicly available information in the FBI database.

[01:02:55] Speaker 06:
It's a matter of you get into that database by stating that you have essentially a law enforcement purpose that's related to federal, state, local,

[01:03:03] Speaker 06:
laws.

[01:03:04] Speaker 06:
And then at trial, the whole point that Mr. Adiroba, his supervisor, was making was that you are not allowed to use this database for anything but official FBI business.

[01:03:16] Speaker 06:
So it doesn't matter whether or not the item that you look up in that system for a friend who's just paid you money or is offering to pay you money and you've agreed

[01:03:24] Speaker 06:
to take it, it doesn't matter what the exact thing is that he's looking up in that system.

[01:03:30] Speaker 06:
The point is he's used that system, which he's only supposed to use for official FBI business, in order to take money from a friend and give this friend aid, which would not be the same as just picking up a phone book in your office 50 years ago and quick looking something up.

[01:03:49] Speaker 06:
I think it's important, too, that the case law indicates that it

[01:03:54] Speaker 06:
your job description is not just limited by what do you do when you go in the office every day?

[01:04:01] Speaker 06:
Mr. Petzl was working in an IT capacity there, working as a liaison with agents and other FBI staff to work on their computer systems, essentially get them what they needed.

[01:04:18] Speaker 06:
The law that we've cited in our brief, including like Moreland case and the Gageli case,

[01:04:23] Speaker 06:
They indicate that the term official duty is not cabined by a job description.

[01:04:32] Speaker 06:
If somebody asks you, what do you do on a daily basis when you go in your office, that's not cabined by, I write briefs, for instance, in my case, or I do research on laws.

[01:04:42] Speaker 06:
It's also cabined by, how are you supposed to act as an FBI agent?

[01:04:48] Speaker 06:
And here,

[01:04:52] Speaker 06:
Mr. Etteroba testified specifically that you were not allowed to use clear, except for an official FBI purpose and cited several regulations that talked about the specific duties that were related to this case.

[01:05:11] Speaker 06:
So this is not a matter of just having a free for all and just saying any ethical rule that could apply to an FBI agent, it creates an official duty.

[01:05:21] Speaker 06:
In the Moreland case, the court indicated that as long as you were cabining regulations to specific.

[01:05:29] Speaker 06:
Yes.

[01:05:30] Speaker 00:
One of the arguments that we have to decide is whether there was sufficient evidence to convict one bribe to count crime.

[01:05:41] Speaker 00:
Right.

[01:05:42] Speaker 00:
And so we have to determine whether the evidence meets all of the elements of the offense.

[01:05:50] Speaker 00:
And regardless of whether the court was, the jury was properly instructed or regardless of whether there was plain error in the jury instruction count, we have to basically map the evidence in the light most favorable to the government against how a properly instructed jury

[01:06:17] Speaker 00:
would consider it and determine whether a reasonable jury could find that sufficient, right?

[01:06:26] Speaker 00:
That's what we should do.

[01:06:27] Speaker 00:
That's right, Your Honor, yes.

[01:06:28] Speaker 00:
So it seems like we are going to have to decide what official duty means in order to perform that exercise, right?

[01:06:40] Speaker 00:
Correct.

[01:06:41] Speaker 00:
And so

[01:06:46] Speaker 00:
What does official duty mean?

[01:06:52] Speaker 06:
Official duty here was explained by Mr. Adarobo's testimony saying that you can't use your public office for private gain, citing regulation for that, that you can't use non-public information to further your own private interest or that of another, that you also can't, in regard to the personal use of government property,

[01:07:16] Speaker 06:
You cannot use government property for other than an authorized purpose.

[01:07:22] Speaker 06:
There was also testimony from Mr. Adaroba that Agent Petzl was trained on these regulations and that they were available to him in the FBI policy guide.

[01:07:33] Speaker 06:
So he had warning of what his duties were.

[01:07:36] Speaker 00:
So that covers the evidence that was presented.

[01:07:39] Speaker 00:
How does that evidence meet the standard of what official duty means?

[01:07:45] Speaker 00:
What is the legal standard for what is an official duty?

[01:07:50] Speaker 06:
The legal standard for what is an official duty is kind of akin to both what Moorleng was saying, what Kajili was saying, and also Fernandez.

[01:08:03] Speaker 06:
Fernandez mentioned that it was related to your job responsibilities, and that that could also include

[01:08:12] Speaker 06:
regulations, rules, and so forth, which would indicate that it's not just cabin to, what do I do when I go in the office every day?

[01:08:20] Speaker 05:
What is my function?

[01:08:21] Speaker 05:
What job responsibility did he not perform?

[01:08:25] Speaker 06:
The job responsibility in particular that he didn't form here is he used official FBI, or he used clear for other than official FBI work, which was unauthorized.

[01:08:39] Speaker 05:
That then suddenly makes everything

[01:08:42] Speaker 05:
That means taking the pen home at night.

[01:08:45] Speaker 05:
Also a violation of an official duty.

[01:08:49] Speaker 06:
No, I don't.

[01:08:49] Speaker 06:
I don't believe so here, though, is there is a government property for personal purpose.

[01:08:54] Speaker 06:
And there are in other situations such as taking a pen home or maybe making photocopies for your Girl Scout troop.

[01:09:01] Speaker 06:
Though there is a de minimis use exception for things like that, but in this case, as Mr Adaroba testified and Agent Waltz testified, there is no.

[01:09:11] Speaker 06:
de minimis use for clear.

[01:09:14] Speaker 06:
You're either doing it for an FBI purpose or you're out of bounds.

[01:09:18] Speaker 01:
What is the official act that was influenced?

[01:09:23] Speaker 01:
Which is that's an element of bribery, right?

[01:09:27] Speaker 06:
Only for official act bribery.

[01:09:28] Speaker 06:
And since this was official duty bribery, it was different.

[01:09:32] Speaker 06:
So we were just looking at what what are his official duties?

[01:09:36] Speaker 05:
How do you distinguish

[01:09:40] Speaker 05:
you know, St.

[01:09:40] Speaker 05:
Domenic Hughes would say he takes a pen home every night.

[01:09:45] Speaker 06:
Well, I mean, at some point you've got a heck of a lot of pens in it's far more than just.

[01:09:50] Speaker 05:
But is that, and that might, maybe consequences for that and disciplinary reasons for that, but is that a violation of an official duty or is that just a human resources issue?

[01:10:06] Speaker 06:
I mean, it would be a violation of an ethical rule if you're getting beyond the de minimis point.

[01:10:12] Speaker 05:
Any violation of any ethical rule is a violation of an official duty.

[01:10:17] Speaker 06:
Only in what I was trying to say, not just any violation.

[01:10:19] Speaker 06:
I'm talking about violations that are specific to what is the crux of the bribery in this case.

[01:10:27] Speaker 06:
So here, I know it's a little bit

[01:10:32] Speaker 00:
I think it is difficult because it is let's suppose Bailey had said You know, I'm starting a business and I need a lot of office supplies for my for my business and You know, I've you know short on cash now But I'll give you a hundred bucks and Bring me, you know

[01:10:59] Speaker 00:
you know, case a copy paper and pins and notebooks and lots of lots of office supply.

[01:11:10] Speaker 00:
And I really appreciate it.

[01:11:12] Speaker 00:
And that's what hates will did.

[01:11:15] Speaker 00:
Did he commit bribery?

[01:11:17] Speaker 00:
Did he violate an official duty?

[01:11:20] Speaker 00:
He did that.

[01:11:24] Speaker 06:
It's a possibility that he did.

[01:11:27] Speaker 05:
Why do you say that?

[01:11:28] Speaker 06:
Well, I mean, just because he has agreed to accept a thing of value, which is the money in return for violating his official duty.

[01:11:36] Speaker 06:
And this wouldn't be a de minimis use situation.

[01:11:38] Speaker 06:
You're essentially selling government furniture and so forth to somebody.

[01:11:44] Speaker 06:
So you have an official duty not to use government resources for non-official purposes.

[01:11:51] Speaker 06:
And I think that would be bribery.

[01:11:54] Speaker 05:
Are there any ethics regulations that would not fall within, a violation of which would not amount to a violation of official duty?

[01:12:04] Speaker 05:
Are you saying every ethics regulation?

[01:12:07] Speaker 06:
No, I'm not saying every ethics regulation.

[01:12:09] Speaker 06:
I think it does have to be, I think it has to be cabined to what is really happening in this case.

[01:12:15] Speaker 05:
That doesn't help me with the statutory definition.

[01:12:18] Speaker 05:
So give me an example.

[01:12:19] Speaker 06:
And that's the problem because there is no statutory definition.

[01:12:23] Speaker 05:
Well, you're asking the court to adopt one.

[01:12:25] Speaker 05:
It just you're asking your friend on the other side has a concept of what official duty means that does not include this case.

[01:12:35] Speaker 05:
And your concept seems to be this case.

[01:12:40] Speaker 05:
And we can't write an opinion like that.

[01:12:42] Speaker 05:
So we need and you say not every ethical violation is in some are out.

[01:12:48] Speaker 05:
So how do I know which ones?

[01:12:52] Speaker 06:
The ethical rules that apply to the specifics of the case are what defines the official duty.

[01:12:59] Speaker 05:
That's not advanced notice to the public as to what is criminality.

[01:13:02] Speaker 05:
That can't possibly be the test.

[01:13:04] Speaker 05:
But you do have advanced... That people look at the statute and know what's criminal and what's not.

[01:13:09] Speaker 05:
So we can't say what's relevant in a particular case.

[01:13:13] Speaker 05:
There has to be... I mean, if your position is every ethical duty, compliance with every ethical duty is

[01:13:22] Speaker 05:
Part of your official duty.

[01:13:24] Speaker 05:
That's your position.

[01:13:26] Speaker 05:
But if you're telling me it's not, then I just need to know what's out and why.

[01:13:30] Speaker 06:
It just has to relate to your job.

[01:13:34] Speaker 05:
And my point is, it's not duties don't relate to your job.

[01:13:42] Speaker 06:
And I can't think of an example right off the top of my head, but the ones that are much more clearly related to what what is.

[01:13:58] Speaker 04:
Is there an ethical duty against using official work time for personal business?

[01:14:05] Speaker 06:
There is an ethical regulation you're supposed to put in an honest day's work and so forth.

[01:14:10] Speaker 05:
I don't think it would get that vague.

[01:14:13] Speaker 05:
March is coming.

[01:14:16] Speaker 05:
And Mr. Petzel, I hope I'm saying this, Petzel?

[01:14:21] Speaker 05:
Right, I'm sorry, I don't know why I have trouble with that.

[01:14:24] Speaker 05:
Tatesville is the March Madness Guru for the FBI.

[01:14:29] Speaker 05:
That's a big organization, right?

[01:14:32] Speaker 05:
That's a lot of brackets to keep track of.

[01:14:37] Speaker 05:
And so during the relevant time in March, he's spending three hours a day

[01:14:45] Speaker 05:
two to three hours a day on his FBI computer, processing everyone brackets, sending out brackets, setting up the terms of the pool, getting people to agree to whatever the prize is, and then processing as the games are played, watching the games during the day.

[01:15:04] Speaker 05:
Is that that would seem to violate the ethics rule, right?

[01:15:13] Speaker 05:
Would that violation be a violation?

[01:15:15] Speaker 05:
We're not a bribery yet, but would that violation be the violation of an official duty?

[01:15:25] Speaker 06:
I don't think so.

[01:15:25] Speaker 06:
I think that one is too vague because that could apply to anybody working for the federal government.

[01:15:30] Speaker 05:
Lots of hours, lots of computer usage, lots of time.

[01:15:33] Speaker 05:
It's not doing FBI work.

[01:15:35] Speaker 06:
It's not specific to his job at all as an FBI agent.

[01:15:39] Speaker 06:
It doesn't relate to, for instance, here like a specific

[01:15:43] Speaker 06:
computer database that he was allowed access to solely because he was an FBI agent.

[01:15:49] Speaker 05:
It's just if you come into the database, Mr. Bailey had paid him because Mr. Bailey's computer is broken.

[01:15:56] Speaker 05:
So if Mr. Bailey had paid him to go on his FBI computer and Google around to find these phone numbers, would that have been bribery?

[01:16:09] Speaker 06:
I don't think that we would have pursued the case as his bribery.

[01:16:12] Speaker 05:
I didn't ask the question right.

[01:16:15] Speaker 05:
That's my problem.

[01:16:16] Speaker 05:
Would that have violated an official duty?

[01:16:19] Speaker 06:
I don't think that that would fall into official duty in the manners in which other cases have indicated.

[01:16:27] Speaker 05:
That's just a factual description of other cases.

[01:16:30] Speaker 05:
I'm asking whether that would violate his official duty.

[01:16:35] Speaker 06:
I don't think that would.

[01:16:38] Speaker 05:
And so the only reason this ethical violation is a violation of official duty is that it's an FBI specific database.

[01:16:53] Speaker 05:
And he has to say, I'm doing authorized FBI investigative work when he goes in and checks which box.

[01:17:02] Speaker 05:
That's what makes it part of his official duty.

[01:17:05] Speaker 06:
That makes a part of his official duties because it is related.

[01:17:08] Speaker 06:
He has access to that database solely because he's a special agent.

[01:17:12] Speaker 06:
And that database is supposed to be used only for FBI.

[01:17:16] Speaker 05:
OK, so now he's going into Westlaw and using his FBI username and password to find some information.

[01:17:29] Speaker 05:
Would that be for somebody for pay?

[01:17:33] Speaker 05:
Would that be a violation of official duty?

[01:17:34] Speaker 05:
Because now he's using an FBI authorized database that I'm sure they're told is supposed to be used for FBI purposes.

[01:17:42] Speaker 05:
And sometimes you even have to put like a code in for what you're working on.

[01:17:46] Speaker 05:
Correct.

[01:17:46] Speaker 06:
Yes.

[01:17:47] Speaker 06:
I think that would be official duty.

[01:17:50] Speaker 06:
That's part of it.

[01:17:51] Speaker 06:
That is one of the things that he's given access to as an FBI agent because he's an FBI agent.

[01:17:57] Speaker 05:
And when you do go into an FBI computer,

[01:18:00] Speaker 05:
Because it's FBI agent.

[01:18:02] Speaker 05:
So even for Google, he's given access to that.

[01:18:05] Speaker 06:
Right.

[01:18:05] Speaker 06:
But Google isn't really Google is for everything.

[01:18:08] Speaker 06:
It's not necessarily related to your job.

[01:18:11] Speaker 05:
But you're using your computer presumably you're taught that you're using your computer is for FBI work.

[01:18:16] Speaker 06:
So so that's that's very, very broad.

[01:18:20] Speaker 06:
So we're not just saying anybody who

[01:18:22] Speaker 06:
spent an hour on the computer, and his friend said, if you look up this information, I'll give you $50.

[01:18:27] Speaker 06:
If you look it up in Google, it's different.

[01:18:29] Speaker 06:
When you start getting into Westlaw, where you have to check in that you are working on a particular case, or I believe that there's a warning on our system when we get in, just saying that you're accepting the fact that you're using this for your job purposes, not just going off and trying to

[01:18:50] Speaker 06:
find out information for non non-work purposes.

[01:18:54] Speaker 05:
In those situations you are then... What if he had the email addresses for these tenants, but Mr. Bailey wanted phone numbers and addresses.

[01:19:06] Speaker 05:
And so he uses, sends an FBI email and it has FBI in his email address and the signature block says FBI agent or whatever it says, and he emails them.

[01:19:18] Speaker 05:
to get their I am so-and-so with the FBI.

[01:19:22] Speaker 05:
Can you please provide me with your phone number?

[01:19:26] Speaker 06:
Yes, I think that would be a violation of an official duty, because you're not supposed to use your... That seems more de minimis than the March of Madness.

[01:19:37] Speaker 06:
But there's no de minimis exception for something like that, because you're just not allowed to go out and represent yourself as an FBI agent for purposes other than actually

[01:19:48] Speaker 06:
doing the work of the FBI.

[01:19:50] Speaker 06:
If this is solely because Mr. Bailey has said, I'll give you money if you get me this information, that is in no way an FBI purpose.

[01:20:02] Speaker 06:
You're essentially using the name of the FBI to get personal information for your friend.

[01:20:09] Speaker 06:
And that would definitely be a violation of the official duty.

[01:20:14] Speaker 06:
And I believe that was one of the

[01:20:16] Speaker 06:
That probably falls under 2635.702 use of public office for private gain, either your own or that of a private gain of a friend, which was one of the regulations that Mr. Adaroba testified about at trial.

[01:20:36] Speaker 06:
So for all of these reasons, we believe there's sufficient evidence of an official duty.

[01:20:40] Speaker 05:
Can you define official duty then using your FBI

[01:20:47] Speaker 05:
position and resources.

[01:20:51] Speaker 05:
For for non government use for it doesn't cover March Madness.

[01:20:57] Speaker 05:
Or Googling on my FBI computer.

[01:20:59] Speaker 06:
No, because you're you're using FBI resources that are only available to the I mean, frankly, anybody could get on Google and look at the use of FBI resources to obtain information exclusive to the FBI.

[01:21:17] Speaker 05:
for private purpose.

[01:21:20] Speaker 06:
Great.

[01:21:20] Speaker 06:
And in the case of Westlaw, it's not necessarily exclusive.

[01:21:23] Speaker 06:
In the case of Westlaw, that wouldn't even necessarily be exclusive to the FBI.

[01:21:27] Speaker 05:
But it's definitely it's not exclusive to the FBI.

[01:21:29] Speaker 05:
So that's not part of your test?

[01:21:32] Speaker 05:
I'm sorry, you're running in kitchen.

[01:21:33] Speaker 05:
So it's not something that you can only do because of your position?

[01:21:36] Speaker 06:
Well, I mean, the only reason if you were working for the FBI that you would have access to it is because of your position.

[01:21:42] Speaker 06:
So yes, that would be violating official duty.

[01:21:45] Speaker 05:
The only reason I have access to the FBI, again, I could do Google on something else, but say my computer at home is broken.

[01:21:49] Speaker 05:
So the only reason I have access to Google is because I'm using my FBI computer.

[01:21:52] Speaker 05:
But you still say that.

[01:21:53] Speaker 06:
No, you can still, I mean, frankly, look that information up on your personal phone while you were sitting in your office.

[01:21:58] Speaker 05:
All he has is the only way he's got to get Google.

[01:22:01] Speaker 06:
I don't think that that would be violating an official duty.

[01:22:05] Speaker 05:
So what's the difference between that and Westlaw?

[01:22:07] Speaker 06:
Westlaw, you have really no access to that, except for the fact that in the same with Clear in this case, he has a username and a password and an account set up by the FBI.

[01:22:20] Speaker 05:
I'm sorry.

[01:22:20] Speaker 05:
People can access Westlaw without being part of the FBI.

[01:22:23] Speaker 06:
Yes, but no matter where you're working, though, you are given by your employer an access username

[01:22:32] Speaker 06:
an account is set up for you by virtue of the fact that you are working.

[01:22:37] Speaker 05:
The account's set up for me to find into my computer every day.

[01:22:39] Speaker 05:
I'm trying to figure out what the line here is.

[01:22:42] Speaker 05:
Well, the line is that- If I'm using the computer for March Madness, you say that's hunky dory.

[01:22:46] Speaker 05:
But if I'm using it to help Mr. Bailey get phone numbers, that's not.

[01:22:55] Speaker 06:
Right, because I'm assuming this about the court is that by virtue of you being a judge, the court has set up

[01:23:02] Speaker 06:
and contracted with the company to give you an account for Westlaw because of your job, which is just different than going on to Google because it's available just in general.

[01:23:15] Speaker 06:
You don't have to have an account.

[01:23:16] Speaker 05:
You're still using a government resource to do that.

[01:23:18] Speaker 05:
It is a government resource, but it's... If your position is that everyone else can get the information anyhow, that seems to hurt you in this case because presumably the other people could get phone numbers.

[01:23:30] Speaker 06:
Well, this was the exact problem in this case, though, is Mr. Rice, who had been a skip tracer for Mr. Bailey, was having no luck getting the information that he really needed.

[01:23:39] Speaker 06:
And particularly, he was having no luck getting it in a timely manner, which is really what this all came down to.

[01:23:44] Speaker 06:
If you wanted to get TOPA rights from these tenants, you had to be quick about it because there were people trying to pay or get tenants to assign rights to their buildings very, very quickly in order to hop into the transactions.

[01:23:59] Speaker 06:
make money off the real estate transactions.

[01:24:02] Speaker 06:
So as was testified to at trial, I believe by Agent Walz, using Clear, it was an aggregator of a lot of information.

[01:24:13] Speaker 06:
It gave more accurate information than Google or whitepages.com or Spokeo or any of these things.

[01:24:19] Speaker 06:
And it gave it to you very, very quickly.

[01:24:22] Speaker 06:
which you can really see when you look at the evidence of the searches that Mr. Petzl did, he was able to get back to Mr. Bailey very quickly and provide additional information.

[01:24:34] Speaker 00:
So let's suppose Bailey said, I need to know all about TOPA.

[01:24:41] Speaker 00:
I wanna try to do this scheme where I buy people's TOPA rights.

[01:24:47] Speaker 00:
So I'm gonna give you 500 bucks and can you access Westlaw

[01:24:52] Speaker 00:
and print out, like, the TOPA law, any regulations, and all of the cases that the DC Court of Appeals has decided relating to TOPA.

[01:25:04] Speaker 00:
And that's what Petzl did.

[01:25:05] Speaker 00:
He accessed Westland, not clear.

[01:25:08] Speaker 00:
And he downloaded all that information and sent it to Bailey in $400 to $500.

[01:25:15] Speaker 00:
Did he violate an official duty by doing so?

[01:25:21] Speaker 06:
If Mr. Bates will have the same sort of warning that we have on our computer saying that you're doing this essentially for FBI business only.

[01:25:28] Speaker 00:
And, you know, perhaps even having to state a case, then yes, he just has to sign in using his username and password for Westlaw.

[01:25:38] Speaker 00:
But there is no such warning other than that.

[01:25:42] Speaker 06:
I would still say the same because I think this wasn't something that was testified to at trial, but it would be

[01:25:51] Speaker 06:
highly likely that Mr. Adderaboo would testify that you can't use Westlaw that's given to you as an agent to then go do lookups for your friends or non-work reasons.

[01:26:11] Speaker 00:
So the definition of official duty hinges on whether there is a

[01:26:19] Speaker 00:
policy practice regulation rule of the FBI that states you cannot use this sort of information that is an FBI resource for your own personal gain.

[01:26:33] Speaker 00:
Correct.

[01:26:34] Speaker 06:
Correct.

[01:26:35] Speaker 06:
Yes.

[01:26:35] Speaker 06:
In fact, in the FBI policy guide, there were examples given of what sort of things would be wrong.

[01:26:40] Speaker 06:
For instance, there was one saying that you can't look up

[01:26:44] Speaker 06:
criminal history of a public figure.

[01:26:46] Speaker 06:
You can't check into the background of a person who might be dating your son or daughter, those sort of things.

[01:26:55] Speaker 06:
Those were all given as examples of improper use of FBI resources.

[01:27:00] Speaker 05:
Checking out whoever dates my daughter is a very authorized resource.

[01:27:05] Speaker 05:
He won't let me do that.

[01:27:08] Speaker 06:
I'm afraid not.

[01:27:11] Speaker 06:
If your honor had any questions on the jury instruction issue, I'm happy to answer them.

[01:27:20] Speaker 06:
I would just say that there has been pointed out by the defense, Mr. Petzl proposed the instruction of official duty as it was given and in the end he did, he endorsed it and ultimately

[01:27:32] Speaker 06:
The official duty instruction that was given in count five was the exact instruction that he had originally proposed.

[01:27:38] Speaker 06:
And even though later on he had asked for a change after the end of the defense case changed, he asked after all the discussions were over, can I change the word corruptly too with corrupt intent in that instruction, the court said no.

[01:27:52] Speaker 06:
And even still at that time, he didn't say, I want any change to the language of the instruction about defining official duty.

[01:28:01] Speaker 05:
I don't think my colleagues have any more questions.

[01:28:03] Speaker 05:
Do you have any other important point?

[01:28:05] Speaker 06:
I don't believe so, Your Honor.

[01:28:06] Speaker 06:
I respectfully request that the court affirm the judgment of the district court.

[01:28:10] Speaker 05:
Thank you.

[01:28:10] Speaker 06:
Thank you.

[01:28:11] Speaker 05:
Ms.

[01:28:11] Speaker 05:
McNamara will give you two minutes.

[01:28:16] Speaker 03:
Thank you.

[01:28:16] Speaker 03:
I just really want to make one point.

[01:28:19] Speaker 03:
And I think one thing that we all know from today's discussion is that what official duty means

[01:28:26] Speaker 03:
is very hard to determine.

[01:28:29] Speaker 03:
And I think that in this case, the rule of lenity therefore compels this court to construe that statute in a way that does not create an incredibly broad, all-encompassing interpretation that includes violations of any type of ethical obligation.

[01:28:51] Speaker 03:
We've cited cases on page 12 of our reply brief, cautioning against doing that.

[01:28:57] Speaker 03:
And I would caution the court against doing that here.

[01:29:02] Speaker 03:
Any other questions?

[01:29:04] Speaker 05:
All right.

[01:29:04] Speaker 05:
Thank you very much.

[01:29:05] Speaker 05:
Thank you very much.

[01:29:06] Speaker 03:
Thank you.