United States of America v. David Paitsel

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 2025 Decided August 1, 2025
No. 23-3212
UNITED STATES OF AMERICA,
APPELLEE
v.
DAVID PAITSEL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00156-2)
Linda Julin McNamara argued the cause and filed the
briefs for appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Matthew M.
Graves, U.S. Attorney, at the time the brief was filed, and
Chrisellen R. Kolb, Nicholas P. Coleman, Elizabeth A. Aloi,
and John W. Borchert, Assistant U.S. Attorneys.
Before: MILLETT and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge WILKINS.
Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.
WILKINS, Circuit Judge: Defendant-Appellant and former
Federal Bureau of Investigation (“FBI”) Special Agent David
Paitsel was given at least $6,500 by his friend, Brian Bailey,
after providing Bailey with information about certain
residential tenants that Paitsel obtained from the FBI’s lawfully
authorized access to the non-public Thomson Reuters
information system known as CLEAR by representing that his
searches were for FBI law enforcement investigative purposes.
The primary issue in this appeal is whether Paitsel’s conduct
constituted bribery under 18 U.S.C. § 201(b)(2)(C), which
prohibits public officials from agreeing to accept valuable
compensation in exchange for performing an “official duty.”
We hold that, in this case, the Government proved beyond a
reasonable doubt that Paitsel’s conduct fell within his official
duties because he performed an act made possible only by both
(i) his official position in the FBI that gave him access to a
specialized FBI database, and (ii) his affirmative representation
while using that database, as required by law, that his conduct
was part of official FBI law enforcement investigative duties.
That satisfies the “official duty” prong even though Paitsel’s
conduct was technically outside the realm of his day-to-day
tasks or functions. Paitsel’s other challenges—a purported
instructional error and the sufficiency of the Government’s
quid pro quo evidence—are also rejected. For the reasons that
follow, we affirm Paitsel’s convictions and sentence.
I.
The District of Columbia has a number of tenants’ rights
laws, one of which is the Tenant Opportunity to Purchase Act

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of 1980 (“TOPA”). TOPA provides that “[b]efore an owner of
a housing accommodation may sell the housing
accommodation or issue a notice to vacate for purposes of
demolition or discontinuance of housing use, the owner shall
give the tenant an opportunity to purchase the housing
accommodation at a price and terms that represent a bona fide
offer of sale.” D.C. CODE § 42-3404.02(a) (2001). In other
words, “[t]he right of a third party to purchase an
accommodation is conditional upon exercise of tenant
rights[,]” and can be blocked if tenants exercise their right to
purchase the property first. Id. § 42-3404.04. TOPA also gives
tenants wide latitude to “assign[] or sell[] th[e]se rights to any
party.” Id. § 42-3404.06. “Under TOPA, a tenant (or, as here,
the assignee of a tenant) can create a binding contract by
accepting the material terms of an owner’s offer of sale,”
preventing the original third party from purchasing the
property. van Leeuwen v. Blodnikar, 144 A.3d 565, 567 (D.C.
2016).
The D.C. Court of Appeals has described TOPA as
establishing “the unrestricted right of a tenant to assign his or
her rights.” Allman v. Snyder, 888 A.2d 1161, 1168 (D.C.
2005). This is true even if assignees are real estate developers
whose interests are not necessarily aligned with those of
tenants. Id.; see also Nawaz v. Bloom Residential, LLC, 308
A.3d 1215, 1226 (D.C. 2024) (TOPA permits an assignee to
“acquire[] these rights for the purpose of ensuring no one else
could exercise them—not for the purpose of purchasing the
property”).
On May 15, 2019, FBI Special Agent David Paitsel was
indicted by a grand jury for allegedly committing various
bribery offenses, including conspiracy to commit bribery, 18
U.S.C. § 371 (Count 3), and bribery in violation of Paitsel’s
“official duty,” 18 U.S.C. § 201(b)(2)(C) (Count 5). The

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indictment alleged that Paitsel’s co-defendant, Brian Bailey,
bribed Paitsel and a local government official in exchange for
information that would allow Bailey to identify and contact
tenants whose residences were undergoing the TOPA process.
Bailey was also charged with conspiracy to commit bribery
under § 371, as well as bribery to induce Paitsel to violate his
lawful duty, 18 U.S.C. § 201(b)(1)(C).
On September 28, 2022, both Bailey and Paitsel proceeded
to jury trial. The evidence presented at trial established that
Bailey sought to identify tenants whose property was for sale
and thus had begun to proceed through the TOPA process. This
allowed Bailey to purchase tenants’ rights and, as assignee, sell
those rights to a third-party purchaser at a profit. Bailey paid a
local government employee in cash for unredacted TOPA
notices, which allowed Bailey to identify tenants by name.
Bailey then asked his good friend, Paitsel, to source the tenants’
information, which Bailey used to reach out to tenants to seek
assignment of their TOPA rights. Bailey later paid Paitsel
about $6,500.
Paitsel found the information Bailey sought by searching
for tenants’ names on a Thomson Reuters information system
called CLEAR. “CLEAR is a risk and fraud database that
provides public record and proprietary information on people,
businesses, phones, assets.” D.A. 483. It aggregates this data
from a variety of sources, including financial institutions such
as credit bureaus. CLEAR data includes personally-identifying
information (“PII”), such as birthdays, driver’s license
information, and Social Security numbers.
Federal laws, including the Gramm-Leach-Bliley Act
(“GLBA”), limit financial institutions’ disclosure of such
information, including PII. See Pub. L. No. 106-102, 113 Stat.
1338 (1999) (codified in part at 15 U.S.C. § 6801); 15 U.S.C.

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§ 6801 (restricting release of so-called “nonpublic personal
information”); 16 C.F.R. § 313.3(n)(3)(i) (defining “nonpublic
information” to include PII). These restrictions apply not just
to financial institutions such as credit bureaus, but also to third
parties that obtain and aggregate information from financial
institutions, like Thomson Reuters. See 15 U.S.C. § 6802(c)
(“[A] nonaffiliated third party that receives from a financial
institution nonpublic personal information under this section
shall not . . . disclose such information . . . unless such
disclosure would be lawful if made directly to such other
person by the financial institution.”).
Thomson Reuters is one such example. Because
information contained in CLEAR is derived in part from
financial institutions, Thomson Reuters may only grant access
to the database for reasons permitted under federal law. See
Kidd v. Thomson Reuters Corp., 925 F.3d 99, 102 n.2 (2d Cir.
2019) ( “Thomson Reuters . . . acknowledges that it is
regulated by the Gramm-Leach-Bliley Act . . . .”). As such, the
FBI’s subscription to CLEAR only permits access to the
database for law enforcement investigations, which is one of
the authorized purposes under the GLBA for disclosure of the
information to the FBI. See 15 U.S.C. § 6802(e)(5); D.A.
485–86.1 Because the Department of Justice has law
enforcement and investigatory functions, its contract with
CLEAR supplies it with automatic access to sensitive
information beyond what might be available to corporate or
other authorized users.
1 Bailey also paid another individual to conduct what is known as
“skip tracing,” that is, trying to find people whose contact
information is missing or has changed. That individual used sources
including whitepages.com, the Internet, and Lexis-Nexis, but he did
not have access to CLEAR.

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To ensure compliance with federal law, Thomson Reuters
requires by contract that every user who logs into CLEAR,
including FBI agents, first affirm that they have a statutorily
authorized purpose for accessing sensitive data. After the user
selects a permissible use, CLEAR shows a warning screen,
which reads:
To maintain compliance with the privacy provisions
of the federal Gramm-Leach-Bliley Act and the
subsequent regulations adopted by the Federal Trade
Commission (GLB), a user must select only a single
purpose from the presented list. Misrepresenting your
access purpose is a violation of our subscriber
agreement and certain federal and state laws. Any use
of information maintained by West, a Thomson
Reuters business, other than for the selected
permissible purpose is grounds for account
termination and may be referred to the appropriate
governmental agency. Designated permissible
purpose changes can be made at any time after
logging in by clicking the refresh option on your
browser.
D.A. 490. The user must acknowledge receipt of this message
before they may search for information. If a user states that
they have no permitted use, their access to information is
restricted.
Even though the FBI “automatically get[s] a certain level
of data” due to the agency’s law enforcement functions, D.A.
493, agents still must select a permissible use each time they
search CLEAR. FBI agents are trained and instructed that they
may use CLEAR for official business only. Upon Bailey’s
request, Paitsel searched CLEAR for tenants’ information on
Bailey’s behalf around 30 times. For nearly every search, he

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averred that he had a law enforcement purpose for accessing
the data. After Paitsel conducted the searches, he shared the
tenants’ information with Bailey.
On October 7, 2022, the jury unanimously found Paitsel
guilty of both conspiracy to commit bribery and bribery. The
District Court denied Paitsel’s motion for a judgment of
acquittal on February 21, 2023. On October 18, 2023, he was
sentenced to two years’ incarceration. This timely appeal
followed.
II.
We begin with Paitsel’s claim of instructional error, which
is easily dismissed. Paitsel argues that the District Court erred
when it instructed the jury that the third element of Count 5,
bribery under § 201(b)(2)(C), required a finding “that Mr.
Paitsel [acted] corruptly in return for being induced to violate
his official duty not to use government resources for
nonofficial business.” D.A. 1146. This instruction, Paitsel
contends, erroneously directed the jury to make a factual
finding that Paitsel had an official duty not to use CLEAR for
nongovernmental purposes. The argument continues that
because this instruction defined the offense of § 201(b)(2)(C)
bribery for the jury, it also infected the District Court’s
instructions as to Count 3, conspiracy to commit such bribery
under § 371, which required, per the District Court’s
instructions, “that an agreement existed between two or more
people to commit the crime of bribery.” D.A. 1135. The
Government argues that Paitsel has forfeited all but plain error
review of this claim and that, on the merits, Paitsel fails to clear
that high bar.
But Paitsel waived, rather than merely forfeited, any claim
of instructional error. “While we review for plain error when
a defendant has forfeited an issue through a failure to object,

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we will not review at all when a defendant acts intentionally to
waive an issue.” United States v. Thomas, 999 F.3d 723, 732
(D.C. Cir. 2021). We refuse to review invited errors because
they raise prudential concerns about fairness—the rule is an
“equitable doctrine.” United States v. Long, 997 F.3d 342, 353
(D.C. Cir. 2021); see also Johnson v. United States, 318 U.S.
189, 201 (1943) (“We cannot permit an accused to elect to
pursue one course at the trial and then, when that has proved to
be unprofitable, to insist on appeal that the course which he
rejected at the trial be reopened to him.”). As such, we raise
invited error sua sponte “[b]ecause the rule is intended to
prevent improper use of judicial machinery” and is thus
“invoked by a court at its discretion.” Cf. New Hampshire v.
Maine, 532 U.S. 742, 750 (2001) (internal quotation marks and
citations omitted) (discussing judicial estoppel).
When a defendant deliberately induces the error below,
such “invited error” constitutes waiver. “A party who
challenges a jury instruction on appeal after having proposed
the instruction’s language commits ‘a textbook case of invited
error.’” United States v. Benton, 98 F.4th 1119, 1130 (D.C.
Cir. 2024) (quoting United States v. Maradiaga, 987 F.3d
1315, 1322 (11th Cir. 2021)). Here, Paitsel requested the very
instruction he now challenges. See Proposed Jury Instructions,
United States v. Paitsel, No. 19-cr-156 (CKK) (D.D.C. Aug. 6,
2021), ECF No. 111, at 11, 17. The District Court adopted that
instruction verbatim, D.A. 1146, and Paitsel did not object.
Paitsel invited the instructional error of which he now
complains, and has thus waived this claim.
III.
Paitsel next disputes that the Government presented
constitutionally sufficient evidence to allow a jury to convict
him of bribery under § 201(b)(2)(C). When considering an

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attack on the sufficiency of the evidence presented, we ask
whether, “viewing the evidence in the light most favorable to
the government, . . . any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
United States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir.
2007) (cleaned up). Our review is highly deferential as we
must “give full play to the right of the jury to determine
credibility, weigh the evidence[,] and draw justifiable
inferences of fact.” Id. Paitsel argues both that (1) insufficient
evidence of the requisite quid pro quo was submitted to the
jury, and (2) the Government failed to present sufficient
evidence that he had an “official duty” not to use CLEAR for
nongovernmental purposes. Both challenges ultimately fail to
persuade us that reversal of Paitsel’s convictions is warranted.
A.
Notwithstanding Paitsel’s contrary arguments, sufficient
evidence of a quid pro quo agreement was presented.2 Bribery
2 Although the Government argues that this challenge is subject to
plain-error review, it was adequately preserved. In his motion below,
Paitsel argued: “Even viewing the evidence in the light most
favorable to the government, the evidence presented does not support
a conviction for Bribery. The government’s evidence of
compensation, which at best may be characterized as a ‘thank you,’
do[es] not meet the elements required to obtain conviction on Count
5.” S.A. 81. The District Court’s ruling on the motion acknowledged
that the relevant bribery statute requires “quid pro quo corruption,
i.e., a specific intent to exchange a thing of value for an action in
violation of a lawful duty.” United States v. Paitsel, No. 19-cr-156
(CKK), 2023 WL 2139366, at *4 (D.D.C. Feb. 21, 2023) (cleaned
up). It then concluded that “[t]he evidence is therefore more than
sufficient to establish corrupt intent to accept payments in exchange
for actions in violation of an official duty,” id. (emphasis added).
Paitsel thus raised—and the District Court decided—whether the

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generally requires that “payments [are] made or agreed to
before an official act in order to influence the official with
respect to that future official act.” Snyder v. United States, 603
U.S. 1, 5 (2024). This distinguishes bribes from “gratuities,”
which involve after-the-fact payments treated differently by
law. See id. 18 U.S.C. § 201(b) requires that a defendant act
“corruptly,” which mandates proof “that the official have a
corrupt state of mind and accept (or agree to accept) the
payment intending to be influenced in the official act.” Snyder,
603 U.S. at 11; see also United States v. Sun-Diamond Growers
of California, 526 U.S. 398, 404–05 (1999) (“[F]or bribery
there must be a quid pro quo—a specific intent to give or
receive something of value in exchange for an official act.”).
The parties’ dispute boils down to whether the record
supported the jury’s finding that prior to Paitsel’s conduct—
searching CLEAR for tenants’ information—he agreed to
accept payment from Bailey in exchange for that information.
Paitsel points out that the payments themselves postdated the
conduct, and the Government replies that the timing of
payments is irrelevant if the promise to pay predated the
violation of an official duty. Paitsel agrees, but points to the
absence of direct evidence that he formed such an agreement
with Bailey before running the relevant CLEAR searches as
undermining the jury’s contrary finding. But the Supreme
Court has made clear that “[t]he agreement need not be explicit,
and the public official need not specify the means that he will
use to perform his end of the bargain.” McDonnell v. United
States, 579 U.S. 550, 572 (2016). “A jury could, for example,
Government presented sufficient evidence to allow a reasonable jury
to find the requisite quid pro quo. See Blackmon-Malloy v. U.S.
Capitol Police Bd., 575 F.3d 699, 707–08 (D.C. Cir. 2009) (“Review
here is thus appropriate because the district court ‘passed upon’ the
in-person issue appellants now present to this court.”) (quoting
United States v. Williams, 504 U.S. 36, 41 (1992)).

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conclude that an agreement was reached if the evidence shows
that the public official received a thing of value knowing that
it was given with the expectation that the official would
perform an ‘official act’ in return.” Id.
Here, there was ample evidence from which a reasonable
jury could have made a finding of quid pro quo beyond a
reasonable doubt. Bailey’s requests for information, and
Paitsel’s responses, spanned from February 2017 to May 2018.
During this time, their communications repeatedly connected
Paitsel’s CLEAR searches to mutual monetary benefit. For
instance, the jury heard evidence that in April 2017, Bailey
wrote to Paitsel via email to discuss potential ways they could
“make some money together.” D.A. 523. In the same message,
Bailey wrote: “The TOPA stuff is doing okay. Obviously, a
lot depends on tracking people down. Even when I get to them
there’s no guarantee, but it only takes one or two to make it
worthwhile.” Id. He then provided Paitsel with the name of
the tenant, and Paitsel responded with that individual’s
information.
In May 2017, Bailey requested another tenant’s
information from CLEAR, and Paitsel sent it the same day.
The following day, Bailey emailed Paitsel to let him know that
he was able to contact the tenant. He wrote, “If I get paid off
of it, I’m going to give you 5K.” D.A. 591. In the same
message, he asked for further information about another tenant.
Paitsel complied and sent back the information the same day.
Months later, after Bailey made $40,000 from re-assigning that
tenant’s interest, he emailed Paitsel: “David, I will have the
money tomorrow from the smaller deal. Do you want to meet
this weekend so I can get it to you?” D.A. 593–94. Again in
the same email, he flagged another tenant for Paitsel to search.
As promised, Bailey withdrew $4,100 the next day and gave
$2,500 to Paitsel.

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In June 2017, Bailey emailed Paitsel to update him that he
had successfully purchased the rights of a tenant whose
information Paitsel had obtained on CLEAR. He wrote, “Hey
bro. I owe you 5K. I found [the tenant] . . . . He assigned his
rights over to me.” D.A. 602. He then again asked for two new
tenants’ information. A few months later, Bailey provided
Paitsel an update on this tenant, texting that the building was
foreclosing and if he successfully sold his assigned rights, he
would “give [Paitsel] 5K,” as promised. D.A. 605. In
December 2017, he confirmed to Paitsel via email: “Looks like
we will get our money for 3021 15th Street Northwest between
December 7th and the 12th. I owe you 5K on that.” Id. Bailey
further stated that another building “hopefully will close by the
beginning of the year,” and “[t]hat one will give you 1500 to
2500.” Id. To that email Bailey attached three notices with
tenant information and asked if Paitsel “can get anything on
them.” Id. Paitsel completed Bailey’s request the same day by
searching in CLEAR and responding. Bailey ultimately wrote
Paitsel a check for $6,500 in January 2018.
Under our precedent, this evidence more than sufficed. In
United States v. Sutton, we considered a § 201(b) conviction in
a case where there was “no direct evidence of [the defendant’s]
intent at the time of the transfer” of money as payment, but
where “there was considerable circumstantial evidence from
which a jury could infer [the defendant’s] knowledge that the
money would be used to bribe government employees.” 801
F.2d 1346, 1358 (D.C. Cir. 1986). While all parties involved
“testified that they had no knowledge of illegality at the time
of payment,” we found significant in Sutton that the timing of
the payment was “the same day” that defendant engaged in the
culpable conduct. Id. at 1359. We further explained that
irrespective of whether culpable conduct predated or postdated
the money transfer, “either resolution allow[ed] a reasonable
inference of [the defendant’s] criminal intent,” because under

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both fact patterns, “[t]he central theme . . . is that the [conduct]
directly corresponded to the receipt of money.” Id. (emphasis
added).
Similarly, in a conspiracy to commit bribery case
involving a conviction under 18 U.S.C. § 371, we ruled that
indirect evidence was “even more compelling evidence of an
agreement” than the direct evidence presented. United States
v. Gatling, 96 F.3d 1511, 1519 (D.C. Cir. 1996). There,
third-party testimony established that one defendant (Jackson)
connected third parties with the other defendant (Gatling), who
provided them with housing subsidies for a $500 fee.
Specifically, “[o]ne witness testified that she gave her $500 to
Jackson, who then put the money in Gatling’s pocket.” Id. We
held that “[t]he jury could legitimately have inferred an
agreement to commit bribery between Gatling and Jackson
from the fact that Jackson spread the word that section 8
subsidies were for sale and repeatedly brought individuals
seeking subsidies to Gatling.” Id.; see also United States v.
Dean, 55 F.3d 640, 658 (D.C. Cir. 1995) (holding sufficient
evidence supported § 371 conviction when jury could find a
public official accepted money and “never paid it back,” and
the briber “benefited from [the official’s] efforts,” thus
permitting the jury to find that the official “accepted the money
in exchange for her performance of ‘official acts’”).
The nexus between Bailey’s requests for information and
his promise and eventual delivery of money represents conduct
that “directly correspond[s] to the receipt of money.” Sutton,
801 F.2d at 1359. Bailey referred to the money he paid Paitsel
as “from the smaller deal,” D.A. 594, and as being “owe[d]”
due to Paitsel’s provision of information, D.A. 605. He directly
tied requests for information to cash, writing, “[t]hat one will
give you 1500 to 2500.” D.A. 605. And Paitsel, having
received and responded to these communications, continued to

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supply Bailey with the sought-after information. After Bailey
wrote Paitsel a check for $6,500, which Paitsel accepted,
Paitsel continued to search CLEAR on Bailey’s behalf. Paitsel
“accepted the money” Bailey gave him and Bailey clearly
“benefitted from [Paitsel’s] efforts.” Dean, 55 F.3d at 658.
The jury could, consistent with our precedent, reasonably infer
from these facts that Paitsel and Bailey formed an agreement
wherein Bailey promised Paitsel money in exchange for
Paitsel’s CLEAR research on his behalf.3
Paitsel nevertheless persists that “the evidence showed
only that Bailey had asked Paitsel to help him find contact
information for tenants and then, of his own accord, had
rewarded Paitsel months later with payment after-the-fact
when information that Paitsel had procured ultimately helped
Bailey turn a profit.” Appellant’s Br. 34. But this reading of
the record is only plausible as to Paitsel’s initial CLEAR
searches between February and April 2017, which preceded
payment. But cf. Appellee’s Br. 33–34 (arguing that even for
these early searches, “[n]othing in the evidence precluded the
3 This comports with out-of-circuit caselaw. See, e.g., United States
v. Cianci, 378 F.3d 71, 98 (1st Cir. 2004) (reasoning that based on
the “juxtaposition” of two comments—one regarding conduct and
one regarding payment—the jury could reasonably infer that the
money paid was to serve as a bribe in return for official acts); United
States v. Lanci, 669 F.2d 391, 393 (6th Cir. 1982) (“The contention
that the evidence was insufficient to support conviction is based on
the defense that the payments to the FBI employee were not made in
return for her agreement to provide, and actually providing,
confidential information[,]” but the jury “could infer that the
payments were made for the stolen materials.”); United States v.
Pacchioli, 718 F.3d 1294, 1302–03 (11th Cir. 2013) (“jury could
fairly determine” that defendant “expected to win the[] favor” of
individuals based on “remarkable coincidence” of defendant’s
provision of valuable free goods and services).

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jury from inferring that Paitsel obtained the information on the
understanding that Bailey would pay him for it—particularly
given their long-term friendship.”).
And Paitsel offers no response at all on reply to the
Government’s rejoinder that “Bailey paid Paitsel on at least
two occasions for providing tenant information which had
helped Bailey contact and purchase tenants’ TOPA rights.”
Appellee’s Br. 35. The District Court instructed the jury that
the Government did not have to correlate each of Bailey’s
payments to a specific violation of Paitsel’s duties, and instead
could “show a course of conduct, that is, a pattern” of such
behavior. D.A. 1147. Paitsel has never challenged that
instruction, nor does he explain why the various unrebutted
instances involving a quid pro quo do not suffice to “show a
course of conduct,” even if not every CLEAR search was
correlated to a discrete subsequent payment.
In light of the robust evidence, we conclude that the
Government presented sufficient proof from which a
reasonable jury could find beyond a reasonable doubt that
Bailey promised Paitsel a bribe in exchange for Paitsel’s
research of tenants on CLEAR.
B.
Paitsel’s remaining sufficiency-of-the-evidence claim is
also unavailing, though it presents a statutory interpretation
question of first impression. Recall that Paitsel was convicted
of so-called “official duty” bribery and conspiracy to commit
that offense, which forbids public officials from “receiv[ing],
accept[ing], or agree[ing] to receive or accept anything of
value . . . in return for . . . being induced to do or omit to do any
act in violation of the official duty of such official or person.”
18 U.S.C. § 201(b)(2)(C). Paitsel argues that his convictions
are constitutionally infirm because the jury was not presented

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with sufficient evidence that he was bribed to violate an
“official duty.” Specifically, he contends that the Government
failed to put forward any evidence establishing that as an FBI
agent, Paitsel had an official duty not to use CLEAR for the
purposes that he did. In particular, Paitsel challenges the
Government’s invocation of “general ethical obligations”
imposed on all Department of Justice employees, Appellant’s
Br. 38, arguing in favor of a narrower definition of “official
duty” limited to his job functions. The Government counters
that its evidence, including evidence that Paitsel was subject to
ethics regulations that govern all federal employees’ conduct,
sufficed.4
“To allow a conviction to stand where the defendant’s
conduct ‘fails to come within the statutory definition of the
4 The Government again argues that Paitsel failed to raise this
argument below and it should be subjected to plain-error review. We
again disagree. The operative question is whether Paitsel “alert[ed]
the district court to the specific arguments he advances on appeal.”
United States v. Little, 123 F.4th 1360, 1368 (D.C. Cir. 2024). In his
motion before the District Court, Paitsel challenged the sufficiency
of the evidence on various grounds. He argued that § 201 “is not
intended to address the issues litigated in this trial, where Mr. Paitsel
is alleged to have misused Government resources.” S.A. 78 (cleaned
up). He cites to Valdez v. United States, 475 F.3d 1319, 1324 (D.C.
Cir. 2007) (en banc), for the proposition that Ҥ 201 is not about
officials’ moonlighting, or their misuse of government resources,”
which he argued was relevant to “what constitutes an official act,”
S.A. 78 n.5. And the District Court addressed this argument, holding
that “[t]here was substantial evidence establishing the Paitsel
understood that he was improperly accessing CLEAR in violation of
a duty to use it only for FBI purposes in exchange for money
payments,” Paitsel, 2023 WL 2139366, at *4, and relying on
evidence “that Paitsel was required to select an official reason for
using CLEAR when he accessed the system” to support its ruling, id.
This sufficed to preserve the issue.

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crime,’ or despite insufficient evidence to support it, would
violate the Due Process Clause.” United States v. Hillie, 14
F.4th 677, 683 (D.C. Cir. 2021) (quoting Griffin v. United
States, 502 U.S. 46, 59 (1991)). As before, we “view[] the
evidence in the light most favorable to the government,
drawing all reasonable inferences in its favor. Our inquiry is
limited to the question of whether ‘any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Dingle, 114 F.3d 307, 310
(D.C. Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (citation omitted). “[O]ur limited determination
on sufficiency review does not rest on how the jury was
instructed, but rather on how a properly instructed jury would
assess the evidence.” Hillie, 14 F.4th at 682 (cleaned up). The
first step to our review is thus to determine the scope of the
statutory term “official duty” under § 201(b)(2)(C).
1.
Although 18 U.S.C. § 201 was enacted in 1962, the federal
bribery statute traces its roots back over a century prior. In
1853, Congress enacted a predecessor statute that, inter alia,
forbade offering valuable collateral to a public official with the
goal of influencing any matter “before him in his official
capacity, or in his place of trust or profit.” Act of Feb. 26, 1853,
Sess. II, ch. 81 § 6, 10 Stat. 170, 171. By 1901, the statute
expanded criminal liability to those who induced an official “to
do or omit to do any act in violation of his lawful duty.” 70
Rev. Stat. § 5451, Comp. Stat. of the U.S. 1901. The Supreme
Court characterized these bribery provisions as proscribing
“bribing an officer of the United States to do an act in violation
of his official duty.” Benson v. Henkel, 198 U.S. 1, 8 (1905).
And as early as 1905, individuals were prosecuted under the
bribery scheme for violating duties “to preserve and keep for
the exclusive use of the” Government confidential records

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relating to investigations. Id. at 9; see also Haas v. Henkel, 216
U.S. 462, 477 (1910) (reviewing jurisdictional basis for
indictment, which alleged that defendants sought to obtain
confidential government reports from a public official, who
violated an official duty in disclosing them).
In 1914, the Supreme Court decided United States v.
Birdsall, 233 U.S. 223, 231 (1914), where it interpreted § 201’s
predecessor statute, a law targeting “official[s] accepting
bribe[s],” Act of Mar. 4, 1909, ch. 821 § 117, 35 Stat. 1109,
which was later codified at 18 U.S.C. § 207. The Court held
that official action need not “be prescribed by statute,” but
could be “governed by a lawful requirement of the Department
under whose authority the officer was acting,” and it was
unnecessary “that the requirement . . . be prescribed by a
written rule or regulation,” but could be defined with reference
to “an established usage which constituted the common law of
the Department and fixed the duties of those engaged in its
activities.” Id. at 230–31 (“In numerous instances, duties not
completely defined by written rules are clearly established by
settled practice, and action taken in the course of their
performance must be regarded as within the provisions of the
above-mentioned statutes against bribery.”); accord United
States v. Macdaniel, 32 U.S. 1, 14–15 (1833) (recognizing that
“usages have been established in every department of the
government, which have become a kind of common law, and
regulate the rights and duties of those who act within their
respective limits”).
We too construed § 201’s predecessor statute broadly. In
Thomson v. United States, we articulated a mandate that some
official duty exist, such that a defendant could not be convicted
of bribing an individual who was not a public official. 37 App.
D.C. 461, 466–67 (D.C. Cir. 1911). We reasoned that when
“Congress used the term ‘official function,’ it had reference to

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acts official in character, something within the legal duty of the
person performing them[,]” as opposed to those “acts or duties
of an important nature . . . legally [e]ntrusted to persons not
officers at all.” Id. at 467. As to “function,” we relied upon its
ordinary meaning, which included, among other things, “the
fulfilment or discharge of a set duty or requirement[,] the
exercise of a faculty or office,” and “that which one is bound
or which is one’s business to do.” Id. For instance, in Fall v.
United States, we affirmed the conviction of Secretary of the
Interior Albert B. Fall for his role in the Teapot Dome scandal.
49 F.2d 506 (D.C. Cir.), cert. denied, 283 U.S. 867 (1931).
There, we adopted the New York Court of Appeals definition,
“giv[ing] to the statutory definition of bribery a construction
broad enough to cover cases where a public officer has
accepted a bribe to act corruptly in a matter to which he bears
some official relation, though the act itself may be technically
beyond his official powers or duties.” Id. at 509–10 (emphasis
added). As we summarized in an official immunity case:
It is not necessary—in order that acts may be done
within the scope of official authority—that they should
be prescribed by statute or even that they should be
specifically directed or requested by a superior officer.
It is sufficient if they are done by an officer in relation
to matters committed by law to his control or
supervision, or that they have more or less connection
with the general matters committed by law to his
control or supervision, or that they are governed by a
lawful requirement of the department under whose
authority the officer is acting.
Cooper v. O’Connor, 99 F.2d 135, 139 (D.C. Cir. 1938)
(internal quotation marks and citations omitted).

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State-law cases echo this formulation of the official duty
requirement. See, e.g., People v. Markham, 30 P. 620, 621
(Cal. 1883) (affirming conviction where violation of official
duty was “the duty of a police officer to arrest, with or without
warrant, according to circumstances, every person who
violates” the law, without reference to the defendant police
officer’s particular job functions); Commonwealth v. Avery, 18
N.E.2d 353, 354 (Mass. 1938) (“[W]here as here he acts under
color of his office we think that a sufficient relation exists.”);
State v. Potts, 43 N.W. 534, 534 (Iowa 1889) (penalizing “any
agreement by which [the officer] undertook to thwart the ends
of justice by using his official position”); People v. Clougher,
158 N.E. 38, 40 (N.Y. 1927) (forbidding “the performance of
or omission to perform any act whatsoever concerning which
any discretion may be exercised by virtue of his actual relation
to some official matter”); State v. Nadeau, 105 A.2d 194, 198
(R.I. 1954) (construing statute as restricting “the prohibited
actions to those performed by a servant in relation to his official
capacity with the city”). But see State v. Butler, 77 S.W. 560,
572 (Mo. 1903) (“[T]here must be a law in force, at the time of
the attempted bribery, which imposes upon him the duty of
acting in his official capacity, upon a subject-matter which may
be brought before him.”).
Many go further to hold that a defendant officer need not
be authorized to perform an official duty, since his commission
or intent to commit an unauthorized act in exchange for a bribe
is even more culpable conduct. See, e.g., State v. Campbell, 85
P. 784, 795 (Kan. 1906) (collecting cases); State v. Ellis, 33
N.J.L. 102, 103–06 (N.J. 1868); People v. McGarry, 99 N.W.
147, 149 (Mich. 1904); State v. Hendricks, 186 P.2d 943, 947
(Ariz. 1947) (“If he acts in his official capacity—and by this
term is meant the doing of such acts as properly belong to the
office and are intended by the officer to be official—the offense
is complete. The validity or invalidity of the act to be done, or

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whether the officer or the body in question had or had not
jurisdiction, is generally immaterial.”). For example, the
Supreme Court of Washington affirmed a police officer’s state
bribery conviction and rejected the defendant’s challenge that
the Government failed to prove that he violated an official duty.
State v. Cooney, 161 P.2d 442, 445 (Wash. 1945). There, the
officer was convicted of accepting a diamond ring in exchange
for releasing a prisoner from custody. The court upheld the
conviction, reasoning that “[w]hether or not he did something
which, as a police officer, technically he had no right to do is
immaterial so long as the act was not entirely beyond his
official duties as such officer.” Id. Because the officer “was
acting officially and because of his authority as a police
officer,” his actions went beyond his authority and “d[id] not
exonerate him from prosecution under the statute against
bribery.” Id.; see also 5 J. Breckinridge Robertson, Bribery, in
CYCLOPEDIA OF L. & PROC. 1041 (William Mack & Howard P.
Nash eds., 1901–1912) [hereinafter CYCLOPEDIA OF L. &
PROC.] (“[I]t has been held immaterial whether the officer had
or had not jurisdiction . . . .”) (defining bribery).
Prior to § 201’s enactment, then, the wealth of federal and
state authority supported the principle that “[a] bribery may be
committed even though the officer in question has no particular
duty with respect to the action desired, so long as the action
pertains to subject matter over which he has a general duty.” 3
WHARTON’S CRIMINAL LAW § 43:9 (16th ed. 2021). This
construction further undermines Paitsel’s contention that an
“official duty” is circumscribed to a particular law enforcement
officer’s day-to-day functions and weakens his argument that
using CLEAR was not part of his job responsibilities. See
Carter v. United States, 530 U.S. 255, 267 n.5 (2000) (noting
that if “Congress [had] simply punished ‘robbery’ or ‘larceny’
as some States have done,” it would have had the effect of
“leaving the definition of these terms to the common law”); see

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also Morissette v. United States, 342 U.S. 246, 263 (1952)
(“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word in the body of
learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed.”);
LAFAVE, 1 SUBST. CRIM. L. § 2.2(d) (3d ed. Oct. 2024 update)
(“[C]ourts interpret common law terminology in statutes
according to its common law meaning rather than its everyday
meaning, with the result that language which might at first
blush seem ambiguous or vague takes on a quite definite
meaning.” (footnote omitted)); Microsoft Corp. v. I4I Ltd.
P’ship, 564 U.S. 91, 101 (2011) (“[W]here Congress uses a
common-law term in a statute, we assume the term comes with
a common law meaning, absent anything pointing another
way.” (citation modified)).
It was against this backdrop that Congress reorganized the
bribery statute in 1962. See Act of Oct. 23, 1962, Pub. L. No.
87-849, § 1(a), 76 Stat. 1119. This history is crucial because,
as we have recognized, “[w]hen Congress next reorganized the
bribery laws in 1962, it was well aware of previous bribery
statutes and court interpretations of those statutes.” United
States v. Neville, 82 F.3d 1101, 1105 (D.C. Cir. 1996).
“Committee reports from both Houses of Congress emphasized
that the new bribery laws made ‘no significant changes of
substance’ and ‘would not restrict the broad scope of the
present bribery statutes as construed by the courts.’” Dixson v.
United States, 465 U.S. 482, 494 (1984) (quoting S. REP. NO.
87-2213, at 4 (1962); citing H.R. REP. NO. 87-748 (1961)).
The 1962 statute defined three different bribery offenses:
bribery in exchange for (1) an “official act,” (2) committing
fraud, or (3) violating an “official duty.” See § 201(c), 76 Stat.

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at 1120 (codified at 18 U.S.C. § 201(c) (1964)). Today, 18
U.S.C. § 201(b)(2) is, in relevant part, nearly identical,
exposing any public official to criminal liability who, “directly
or indirectly, corruptly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally or for
any other person or entity, in return for” (A) performing “any
official act,” (B) committing fraud, or (C) “being induced to do
or omit to do any act in violation of the official duty of such
official or person.”
In Valdes v. United States, our en banc Court construed
“official act” under § 201(b) narrowly, rejecting the
Government’s bid to construe that element “to encompass
essentially any action which implicates the duties and powers
of a public official.” 475 F.3d 1319, 1322 (D.C. Cir. 2007) (en
banc). We disagreed with the Government’s characterization
of Birdsall as standing “for the proposition that every action
within the range of official duties automatically satisfies
§ 201’s definition,” and clarified that “it merely made clear the
coverage of activities performed as a matter of custom.” Id. at
1323. Instead, we looked to 18 U.S.C. § 201(a)(3), which the
Supreme Court construed in Sun-Diamond Growers, 526 U.S.
at 404–414, and which defines “official act” as “any decision
or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may
by law be brought before any public official, in such official’s
official capacity, or in such official’s place of trust or profit.”
Id. We reasoned that the Court in Sun-Diamond Growers
applied an “interpretive gloss” to “reject the government’s
theory that” the official act provision “covers any action taken
in an official capacity.” Id. Taken together, Valdes and
Sun-Diamond Growers tell us that when Congress restructured
the bribery statute, it carved out official act bribery as a
narrower offense than the singular bribery offense that
preceded § 201. Contrary to Paitsel’s insistence otherwise, the

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two cases view the bribery statute as a whole in a way that
favors the government’s argument here.
The Valdes Court reasoned that official duty bribery
encompasses more conduct than official act bribery. There, the
defendant was a police officer charged with official act bribery
for “searching several police databases to supply otherwise
publicly available information to” an FBI informant posing as
a private party. Id. at 1320. The facts there were, in all relevant
aspects, nearly identical to those at issue here. We reversed the
defendant’s conviction, however, because “an information
disclosure is not in itself a decision or action on a question,
matter, cause, suit, proceeding or controversy” that “may by
law be brought before a public official” and so is not an official
act. Id. at 1330 (citation modified). Paitsel and the dissent
make much of the Valdes Court’s statement that “§ 201 is not
about officials’ moonlighting, or their misuse of government
resources[,]” id. at 1324, but we indicated that the decision
“plainly continue[d] to allow bribery prosecutions when, for
example, someone offers something of value to induce an
official to provide information in violation of official duty,” id.
at 1327 (emphasis added). It was clear to the en banc Court,
then, that the provision of information to a civilian was the sort
of conduct that could constitute a violation of one’s official
duty, even if it would not comprise an official act.
This intuition squares with our precedent construing
§ 201’s predecessor statute, see Fall, 49 F.2d at 509–10
(encompassing “cases where a public officer has accepted a
bribe to act corruptly in a matter to which he bears some official
relation, though the act itself may be technically beyond his
official powers or duties”), as well as the construction of the
term “official duty” in other federal bribery statutes. See
United States v. Carson, 464 F.2d 424, 433 (2d Cir. 1972)
(“There is no doubt that federal bribery statutes have been

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construed to cover any situation in which the advice or
recommendation of a Government employee would be
influential, irrespective of the employee’s specific authority (or
lack of same) to make a binding decision.”) (collecting cases).
For instance, the Meat Inspection Act, enacted in 1907 and
amended in 1967, proscribes the receipt of valuable collateral
by federal employees with meat inspection responsibilities that
was “given with intent to influence his official action” or to
influence “the discharge of any duty” provided for in the Act.
21 U.S.C. § 622. We distinguished the Meat Inspection Act’s
broad conception of “duty” from § 201’s “official act” offense
discussed in Sun-Diamond Growers, reasoning that “the Act
does not place any restrictive definitional gloss upon what
constitutes ‘the discharge of any duty under the Act.’” United
States v. Schaffer, 183 F.3d 833, 846 (D.C. Cir. 1999).
Applying an ordinary-meaning analysis, we recognized that
generalized statutory rulemaking authority “lacks the
particularized focus of the term ‘official act,’” and that “[t]hese
duties extend beyond the mere development and promulgation
of food safety regulations, and encompass an ongoing
obligation to ensure enforcement in conformity therewith,”
such that “one could unlawfully attempt to influence the
Secretary in the discharge of his broad-based duties without
identifying any particular policy then at the regulatory fore.”
Id.; accord United States v. Espy, 145 F.3d 1369, 1371–72
(D.C. Cir. 1998) (same).
Moreover, the United States Code is replete with statutes
that employ some variation of “official duty.” For instance, 18
U.S.C. § 111(a)(1) has also been construed to require a nexus
with the officer’s generalized responsibilities, but not more.
That statute forbids assaulting a federal officer “while engaged
in or on account of the performance of official duties.” Id.
Courts have recognized that “[t]he parameters of the statutory

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requirement that a federal official covered by the act must be
engaged in the performance of his official duties are inherently
fluid.” United States v. Boone, 738 F.2d 763, 765 (6th Cir.
1984) (per curiam). Although “[t]here is no bright-line test to
define performance of official duties,” United States v. Hoffer,
869 F.2d 123, 125 (2d Cir. 1989) (cleaned up), several Circuits
have adopted the framework that “[e]ngaged in performance of
official duties is simply acting within the scope of what the
agent is employed to do. The test is whether the agent is acting
within that compass or is engaging in a personal frolic of his
own.” United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.),
cert. denied, 338 U.S. 917 (1967) (cleaned up); see also United
States v. Reid, 517 F.2d 953, 964 (2d Cir. 1975) (“It was
thinking in terms of what the officer ought to do because of
being an officer.”).
In construing “official duties” under § 111(a)(1), Courts of
Appeal have cautioned against “occupational pigeonholing.”
United States v. Green, 927 F.2d 1005, 1007 (7th Cir.), cert.
denied, 502 U.S. 847 (1991); see United States v. Street, 66
F.3d 969, 978 (8th Cir. 1995) (“[N]or is the touchstone whether
the officer is performing a function covered by his job
description.”) (citation omitted). In United States v. Green, the
Seventh Circuit rejected the argument that the assaulted
officers were not performing official duties when they
dispersed a fight, merely because they “were prison food
service workers rather than guards,” since “the sweep of the
phrase ‘official duties’” extended beyond one’s job functions
to encompass broader duties shared by all prison employees,
including “safekeeping, protection, and discipline.” 927 F.2d
at 1007–08. And in United States v. Kelley, the Fifth Circuit
rejected a defendant’s argument that an officer was not
performing “official duties” when the officer stopped at the
scene of a car accident, even though she was not a traffic officer
but rather on her way to investigate credit card fraud, and

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therefore defined “official duties” with reference to the
officer’s law enforcement role, rather than her particular job
functions. 850 F.2d 212, 214–15 (5th Cir. 1988). Every Court
of Appeals to address the issue has uniformly held that
§ 111(a)(1)’s “official duties” requirement extends beyond
one’s particular job responsibilities. Cf. United States v.
Hansen, 599 U.S. 762, 772 (2023) (interpreting comparable
terms in other provisions of “the federal criminal code”).
Considering our precedent, comparable state-law
formulations of official duties, and the complimentary
construction of this term in other statutes, an “official duty”
within the meaning of § 201(b)(2)(C) could seemingly
encompass an obligation or responsibility beyond one’s
day-to-day tasks or functions. And that test would certainly
cover Paitsel’s conduct. But we need not definitively adopt
that test because, in this case, it suffices for Paitsel’s conduct
to fall within his official duties that he performed an act made
possible only by both (i) his official position in the FBI that
gave him access to a specialized FBI database, and (ii) his
affirmative representation while using that database, as
required by law, that his conduct was part of official FBI law
enforcement investigative duties.5
2.
Applying this definition, Paitsel’s sufficiency challenge
fails. It falters even if we assume without deciding that the
5 United States v. Fernandez, No. 19-15044, 2022 WL 3581793 (11th
Cir. Aug. 22, 2022) (per curiam unpublished op.), is not to the
contrary. There, the Eleventh Circuit stated that “[a]lthough the term
‘official duty’ is not statutorily defined, its ordinary meaning
encompasses a public official’s job responsibilities as dictated by
governing statutes, rules, and regulations.” Id. at *4. But this

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Government may not satisfy its burden with ethics regulations
applicable to all federal government employees, as Paitsel
insists. He has not shown that no rational trier of fact could
find that, based on the evidence presented, Paitsel violated an
obligation relating to, and required by, his position as an FBI
agent.
The CLEAR permissible-use warning and related
testimony were sufficient to allow a jury to find that Paitsel had
an official duty to comply with the CLEAR permissible uses,
which included using the system for only official business. The
admission of the warning screen and testimony together
supplied enough evidence from which a reasonable factfinder
could conclude beyond a reasonable doubt that Paitsel, in his
role as an FBI Special Agent, had an official duty to comply
with the terms and conditions of using the CLEAR system,
which were required by federal statute. See supra Part I.
Specifically, the Government presented evidence that legal
restrictions on the dissemination of PII, specifically the GLBA,
require Thomson Reuters to place “restrictions on how that
data can be used,” including that users must identify a
“permissible purpose[] in order to be a client of CLEAR.” D.A.
485.6 The FBI’s version of CLEAR contains a greater level of
statement was dictum. In Fernandez, the Eleventh Circuit affirmed
because the appeal solely challenged the District Court’s refusal to
instruct the jury on “official duty” using the statutory definition of
“official act,” as those terms are clearly distinct. Id. It thus had no
occasion to define “official duty,” because it merely needed to affirm
the District Court’s rejection of defendant’s proposed instruction.
6 The dissent accuses us of rewriting the indictment to “charg[e] an
offense that was never alleged” and substituting ourselves for “a jury
who was not required to, and did not, make any findings about
Paitsel’s compliance with the Gramm-Leach-Bliley Act.”

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access to data because the FBI is a law enforcement agency,
and government investigations are a statutorily permitted use
of such data. D.A. 483–87. As part of his role, Paitsel was
trained that CLEAR is used for official business only. Paitsel’s
ability to access CLEAR was inextricably tethered to and
dependent on his position as an FBI agent, and his affirmative
representations that searches performed were part of his law
enforcement investigation work. That rendered it part of his
official duty, just as, as defense counsel conceded at argument,
“any FBI agent who misuses his badge for private purposes”
could be found to have violated his official duty. Oral Arg.
35:55–37:32.
This is true even though it is undisputed that Paitsel did
not use CLEAR as part of his job description. That is because
even if the database was not part of his day-to-day functions,
Dissenting Op. 7. But the indictment alleged that CLEAR’s
permissible use screen existed “[t]o maintain compliance with the
privacy provisions of the federal Gramm-Leach-Bliley Act,” D.A.
71; evidence about the GLBA requirements was presented to the jury
without objection; and the Government argued to the jury in closing
that CLEAR “can be used only for specific purposes” under federal
law, including the GLBA, D.A. 1012, such that Paitsel “lied every
single time” he accessed CLEAR and affirmed that “he was logging
into CLEAR for use complying with federal, state, or local laws,”
D.A. 1012–13. The Government further argued (over no objection)
that the jury should find that Paitsel violated his official duty
“because he lied every time he ran a search in CLEAR, which he had
special access to because he was an FBI agent.” D.A. 1106.
Furthermore, Paitsel’s argument to the jury, as well as his briefing to
us, did not contest that his misrepresentation that he sought to access
CLEAR for law enforcement purposes violated the GLBA. As
already stated, “our limited determination on sufficiency review does
not rest on how the jury was instructed, but rather on how a properly
instructed jury would assess the evidence.” Hillie, 14 F.4th at 682
(citation modified).

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Paitsel’s occupation gave him access to CLEAR, D.A 440–44,
and he manipulated the privileges provided by his official role
to derive information from the database by misrepresenting that
he was searching it for law enforcement purposes, S.A. 17–19;
D.A. 499, 517. CLEAR related to Paitsel’s official role
because his status as an FBI agent not only gave him access to
the database in the first instance, but also imposed
responsibilities on his use of the system. D.A. 487–93. Federal
law requires that Paitsel access CLEAR only for a permissible
purpose. Notwithstanding his role as an FBI agent, Paitsel was
not authorized to search for tenant information in the database
absent a legitimate law enforcement purpose. He nevertheless
did so, taking actions that falsely averred that he was accessing
the restricted database for specifically—and wrongly—
identified law enforcement purposes.
Furthermore, as testified to at trial without objection,
Paitsel’s access to CLEAR violated the GLBA, as well as
specific FBI training, instructions and regulations about access
to FBI databases. D.A. 440–49, 499–500, 505–06. This
neutralizes Paitsel’s argument that he violated only a vague
ethical duty. His access was an affirmative action that violated
a federal statute, the GLBA, and FBI regulations. For that
reason, as well as the other reasons outlined above, Paitsel
violated an official duty by running searches for PII on the
CLEAR database for personal profit after falsely representing
that the searches were for official law enforcement
investigative work—a representation without which he could
not have obtained the PII material.
Paitsel also suggests that his disclosure of telephone
numbers would not violate the GLBA, as such information is
available to the public and thus not meaningfully understood as
PII under the Act. But see Trans Union LLC v. FTC, 295 F.3d
42, 50 (D.C. Cir. 2002) (observing that GLBA regulations

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include telephone numbers within definition of PII). Even if
true, Paitsel also disclosed other PII to Bailey, including at least
one tenant’s Social Security number. See D.A. 619. Social
Security information is indisputably non-public personal
information as defined by the GLBA. It is “[i]nformation a
consumer provides to [a financial institution] on an application
to obtain a loan, credit card, or other financial product or
service,” 16 C.F.R. § 313.3(o)(2)(i)(A), that one would not
have “a reasonable basis to believe is lawfully made available
to the general public,” id. § 313.3(p)(1); see also Trans Union,
295 F.3d at 50 (noting that regulatory definition of PII under
the GLBA encompasses Social Security numbers). In fact,
federal law restricts the release of Social Security information
absent an individual’s consent, even imposing criminal liability
for certain such disclosures. See 5 U.S.C. § 552a(b), (i).
Paitsel’s transmission of a tenant’s Social Security number to
Bailey thus independently sufficed to establish a violation of
his official duty.7
It is also immaterial that the PII on CLEAR was derived
from information collected by private third-parties, like credit
7 The dissent does not dispute that Social Security numbers are PII,
but instead contends that the evidence presented at trial regarding
Paitsel’s disclosure of Social Security information must be ignored
because the indictment did not specifically mention such a
disclosure, nor did the jury instructions. Dissenting Op. 10. But the
indictment alleged disclosures beyond merely telephone numbers as
the dissent claims, to encompass the provision of “non-public
information that PAITSEL obtained using FBI resources” more
generally, D.A. 73, and “personal contact information, including”
(but not limited to) “telephone numbers and email addresses,” D.A.
74. In any event, the indictment plainly alleges that Paitsel conveyed
to Bailey the same tenant’s “date of birth,” D.A. 81, which was
proven at trial, D.A. 619, and which the Thomson Reuters witness
testified constituted PII, D.A. 513–14.

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companies. See D.A. 483, 494–95. Valdes strongly suggested
that “searching several police databases to supply otherwise
publicly available information to” a private party constituted a
violation of one’s official duty. 475 F.3d at 1320, 1327; see
supra Section III.B.1. Moreover, a private entity’s access to
PII—for instance, a bank’s knowledge of one’s name, contact
information, and account number, see D.A. 483–84—does not
render it publicly available information. The GLBA’s
implementing regulations acknowledge that consumers
regularly provide financial institutions with PII, including
“[a]ccount balance information” or “[i]nformation from a
consumer report,” like contact information. 16 C.F.R.
§ 313.3(o)(2)(B), (G). But that information is still “nonpublic”
under the Act, because it is not available to the general public.
Id. § 313.3(n)(1).
The dissent argues that our ruling “authorizes private
companies to define the offense through contractual
restrictions on those using its products.” Dissenting Op. 1–2 &

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33
n.3.8,9 But as already articulated, it is federal law which
restricted Paitsel’s access to the information that he shared, and
his ability to discover that information was granted by virtue of
his position as an FBI agent with credentials to access CLEAR
along with his affirmative representation that he was acting in
an official FBI investigative capacity in undertaking the
searches. See United States v. Parker, 133 F.3d 322, 326 (5th
Cir. 1998) (upholding indictment under § 201(b)(2)(C) for
fraudulent use of computer system, holding that “official act”
under the statute “encompasses use of governmental computer
8 As stated, the dissent’s concerns are unfounded given that Paitsel
violated his official duty by transgressing federal law in falsely
claiming that he was engaged in law enforcement work and by
misusing his law enforcement credentials to do so. That is far more
than a mere contractual-use restriction. This alone distinguishes Van
Buren v. United States, where “the search breached department
policy” but did not violate an independent federal law. 593 U.S. 374,
380 (2021). Moreover, unlike Van Buren, Paitsel did not “obtain
information that . . . [was] otherwise available to [hi]m,” see id. at
378, as his access was restricted to law-enforcement purposes by a
federal statute. While the dissent urges that Van Buren refutes our
conclusion that Paitsel violated the GLBA, Dissenting Op. 2 n.3, 5
n.6, the cited analysis centers on concerns that the relevant statutory
clause “criminalizes every violation of a computer-use policy,” 593
U.S. at 394, as Van Buren was convicted for violating user
requirements imposed by policy (as opposed to a federal statutory
requirement).
9 United States v. Safavian, where we declined to hold that a federal
employee who refused ethical advice pursuant to a “voluntary
system” did not “impose[] a duty on those seeking ethical advice to
disclose” relevant information or be subject to criminal liability, also
presents a distinct set of facts. 528 F.3d 957, 964 (D.C. Cir. 2008).
There, “the government failed to identify a legal disclosure duty
except by reference to vague standards of conduct for government
employees.” Id. Here, the ruling is premised on a violation of federal
law.

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34
systems to fraudulently create documents for the benefit of the
employee or a third party for compensation, even when the
employee’s scope of authority does not formally encompass the
act”).
If Paitsel, instead, had walked into a bank, flashed his
credentials, and falsely claimed that he was engaged in a law
enforcement investigation and demanded to see a client’s files
for his personal purposes, that conduct surely would have
breached Paitsel’s official duties. The only difference here is
that the FBI’s restricted database brought the bank to Paitsel.
Neither Paitsel nor the dissenting opinion explains why that
technological convenience makes Paitsel’s conduct any less a
breach of official duty. Sure, other non-governmental
entities—credit companies, fiduciaries, and the like—could
contract with Thomson Reuters to obtain such information for
a federally permissible purpose and themselves break the law
to sell that information to Bailey. Perhaps such conduct might
incur criminal liability under other statutes. But that possibility
does not detract from Paitsel’s own official duty to access the
CLEAR database solely for permissible purposes under federal
law.
The Government thus presented sufficient evidence from
which a reasonable factfinder could find that Paitsel had an
official duty to use CLEAR for only official purposes, which
he violated by searching for tenants’ information for his and his
friend’s personal financial advantage.
3.
Paitsel wrongly argues that this reading expands criminal
liability under 18 U.S.C. § 201. Similarly, the dissent
catastrophizes that after today’s decision, any federal employee
who accesses a “restricted database[], and disregards the
company’s contractual use restriction posted on a

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35
screen . . . expecting—or being promised—a box of chocolates
or a bottle of wine—. . . will have committed the federal
criminal offense of bribery, punishable by up to fifteen years’
imprisonment.” Dissenting Op. 1.
These arguments overlook that the bribery statute requires
proof beyond a reasonable doubt of other elements, which are
defined more narrowly. First, the dissent disregards the
requisite mens rea requirement under the statute. To prove a
violation of the statute, the government must show beyond a
reasonable doubt that the defendant “corruptly demand[ed],
s[ought], receive[d], accept[ed], or agree[d] to receive or
accept anything of value.” 18 U.S.C. § 201(b)(2). As
discussed supra Section III.A, “bribery requires that the official
have a corrupt state of mind and accept (or agree to accept) the
payment intending to be influenced in the official act.” Snyder,
603 U.S. at 11. Intent is unquestionably a higher mens rea
standard than reckless disregard. See United States v. Smith,
104 F.4th 314, 328 (D.C. Cir. 2024), cert. denied, 145 S. Ct.
1478 (2025) (“[F]ederal courts are uniform that an ‘intentional’
mens rea does not include reckless conduct.”).
Second, as we explained in Valdes, our bribery scheme
“defines the predicate acts broadly, but the required
compensatory link narrowly,” such that “the payment at issue
must actually influence the act or omission,” a high bar for the
Government to clear. 475 F.3d at 1327. Even assuming that
the weighty mens rea requirement were satisfied, unless a box
of chocolates or a bottle of wine was the incentive which
“actually influence[d]” the violation of an official duty, there
would be no criminal liability under § 201.
Third, what firmly renders Paitsel’s conduct a criminally
punishable violation of an official duty here is not mere
transgression of a private entity’s “contractual-use restriction,”

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36
but the federal laws and regulations requiring such a restriction.
See supra Part I & Section III.B.2. While true that “the screen
purporting to limit Paitsel’s use of CLEAR” was not itself a
federal law, but rather “a notice from Thomson Reuters” that a
permissible use of the database was required under federal law,
Dissenting Op. 8–9, this distinction makes no difference here.
Thomson Reuters may only disseminate certain information in
CLEAR to those with permissible reasons for accessing such
information, and the basis for that restriction is Congress’s
stated goal of protecting consumer information derived from
financial institutions, embodied in the GLBA. (Not “terms
dictated by a private entity,” id. at 9, as the dissent suggests.)
As he himself concedes, Appellant’s Br. 10 (“Privacy
legislation relating to some of the information that CLEAR
assembles requires CLEAR clients to confirm that they are
using that information only for certain permissible purposes.”),
Paitsel was not entitled to access tenants’ private information
and thus misused his law enforcement status to circumvent
Thomson Reuters’s implementation of Congress’s
requirements.
Ultimately, subsection 201(b)(2)(C) does not criminalize
any violation of an official duty, but rather only does so when
the other elements are met. They are here.
“Of course, if the action desired is entirely unrelated to the
subject matter over which the officer has a general duty, no
bribery can be committed.” 3 WHARTON’S CRIMINAL LAW
§ 43:9 (16th ed. 2021) (emphasis added); 5 CYCLOPEDIA OF L.
& PROC. 1041 (7th ed. 1901–1912) (“[I]t has been held no
offense to offer a bribe for an act entirely outside the officer’s
official function.”). Those concerns have no purchase in this
case where the defendant was able to access an official,
statutorily restricted FBI database solely by virtue of his
official position and his affirmative representation that his

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37
searches were for official FBI investigative purposes. So this
case bears no resemblance to Paitsel’s concerns about federal
employees being held liable for sharing information from a
public telephone book in exchange for payment. Such conduct
has no relation to an FBI agent’s general duties. (And, in any
event, the GLBA’s implementing regulations do not protect
numbers located in telephone books from disclosure because
that information “is lawfully made available to the general
public.” 16 C.F.R. § 313.3(p)(1), (p)(3)(iii)(B) (exempting
information from a telephone book).)
4.
Our ruling also continues to give full effect to every
provision of § 201 and our binding en banc precedent,
notwithstanding the dissent’s contrary contentions.
The dissent first says that our early cases “stand for the
proposition that ‘official duty’ consists of performing ‘official
acts.’” Dissenting Op. 4. The prose of these opinions refers to
“acts official in character,” Thomson, 37 App. D.C. at 467, but
the decisions predate the enactment of 18 U.S.C. § 201, which
for the first time defined distinct offenses based on violations
of an “official act” or an “official duty.” As such, those rulings
cannot overrule Congress’s later choice to enact a statute
setting forth several discrete offenses. To hold that an “official
duty” is made up solely of “official acts” would render
nugatory the official duty offense, 18 U.S.C. § 201(b)(2)(C),
since all such conduct would be charged as official act bribery
under § 201(b)(2)(A). See Duncan v. Walker, 533 U.S. 167,
174 (2001) (“It is our duty to give effect, if possible, to every
clause and word of a statute. We are thus reluctant to treat

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38
statutory terms as surplusage in any setting.”) (citation
modified).10
Collapsing official duty bribery into official act bribery
would also run counter to our en banc precedent interpreting
the statute otherwise. See Valdes, 475 F.3d at 1327 (“[T]he
bribery provisions cover two additional predicate classes”
beyond official act bribery under § 201(b)(2)(A), including
§ 201(b)(2)(C)). The dissent’s reliance on § 201(a)(3), which
defines “official act”; McDonnell, 579 U.S. at 566, which
concerned “the proper interpretation of the term ‘official act’”
as defined in § 201(a)(3); and the ultimate holding in Valdes,
concerning an official act gratuity conviction, is unavailing.
See Dissenting Op. 4–6 & n.7. This is not an official act case.
Recall that in Valdes, we reversed Valdes’s conviction for
receiving a gratuity, holding that conduct akin to that at issue
here did not constitute an official act within the meaning of
§ 201. 475 F.3d at 1330. Gratuity under § 201(c)(1)(B) is a
lesser-included offense of “official act” bribery under
§ 201(b)(2)(A) and carries a lesser maximum penalty of two
years’ imprisonment, 18 U.S.C. § 201(c)(3), whereas bribery is
punishable by up to fifteen years’ incarceration, id. § 201(b)(4).
Section 201 does not define a lesser-included offense for
“official duty” bribery—that is, there is no “official duty”
gratuity contained in the statute.
After Valdes, then, Paitsel could not be convicted of an
“official act” offense for the alleged conduct in this case, which
necessarily foreclosed prosecution under a gratuity theory. In
other words, Paitsel cannot be guilty of the lesser “official act”
gratuity offense, but is still properly convicted of “official
10 Paitsel does not argue that “official duty” should be defined as
coextensive with, or comprised of, conduct amounting to an “official
act.”

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39
duty” bribery. Thus, the dissent’s concern that our holding
regarding the scope of “official duty” bribery does not comport
with the scope of “official act” gratuity is meritless. See
Dissenting Op. 4–6. The latter is not a lesser included offense
of the former. To the extent that this outcome appears
asymmetrical, as our en banc Court previously recognized, our
role in correcting any perceived imbalance is circumscribed:
“Judicial extension of those for the gratuity provision would
disturb the balance Congress chose—which, of course, it is free
to modify at any time.” Valdes, 475 F.3d at 1328. “When
Congress in 1962 reorganized the bribery statute and added an
illegal gratuity offense, it could easily have made that provision
perfectly mirror all of the predicate acts listed in the older
bribery provision; instead, however, it chose to include only the
‘official act’ predicate . . . and not the ‘fraud’ or ‘official duty’
predicates . . . .” Id. Although the dissent charges us with
“throw[ing] up [our] hands and blam[ing] Congress for the
incongruity[,]” we must continue to respect the drafting
decision of the legislature and our Court’s prior interpretation
of this statute.
Finally, our decision expressly relies upon the “official”
nature of the § 201(b)(2)(C) offense, leaving open for another
day how to discern the definition of § 201(b)(1)(C)’s
lawful-duty offense, and the relationship between an “official
duty” and a “lawful duty.”
IV.
For the reasons stated, we affirm Paitsel’s convictions and
sentence.
So ordered.

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RANDOLPH, Senior Circuit Judge, dissenting:
The majority’s decision in this case is enormously
important because of its dire implications not only for the
defendant David Paitsel but also for federal employees in
general.
Throughout the federal government there are now more
than 300,000 databases, nearly 2,000 of which are in the
Department of Justice alone.1 Many are non-public and
restricted, available only to federal employees in their respective
offices (or chambers). As in this case, a private company often
owns and maintains the database, and dictates the terms of its
use for federal (and private) subscribers.2
Now, as a result of the majority’s ill-considered decision,
any federal employee who logs onto one of these restricted
databases, and disregards the company’s contractual use
restriction posted on a screen, and, for instance, retrieves an
article from a newspaper website, a case from Westlaw, or
someone’s telephone number for a friend, expecting—or being
promised—a box of chocolates or a bottle of wine—now that
federal employee will have committed the federal criminal
offense of bribery, punishable by up to fifteen years’
imprisonment.
This picture is profoundly disturbing. The majority’s
decision converts ethical constraints into federal criminal
offenses, and authorizes private companies to define the offense
through contractual restrictions on those using their products.
See Van Buren v. United States, 593 U.S. 374, 393-94 (2021);
1 See Data.gov.
2 Congress contemplated this private-public arrangement. See 44
U.S.C. § 3511(a)(2)(E)(v)(III).

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2
United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008).3
I.
Paitsel’s principal argument—that the evidence was
insufficient to support his convictions—depends on whether the
bribery statute, 18 U.S.C. § 201(b)(2)(C), covered his alleged
conduct. It did not and we should have reversed his convictions.
The majority’s opinion recognizes the Supreme Court’s
decisions holding that the crime of bribery under § 201 requires
proof of a quid pro quo. Majority Op. 2, 9, 10, 11, 15. But that
is about all the majority does—recognize the Supreme Court’s
decisions. The balance of the majority’s opinion disregards what
in this case is the most important part of the Supreme Court’s
definition of federal bribery law.
The Supreme Court has clearly delineated an essential
prerequisite to finding that a governmental official has
committed the crime of § 201 bribery. A bribe, the Court held,
requires “a quid pro quo.” United States v. Sun-Diamond
3 As the Supreme Court observed in a related context, “the
Government’s interpretation of the statute would attach criminal
penalties to a breathtaking amount of commonplace computer
activity.” Van Buren, 593 U.S. at 393. “Many websites, services, and
databases . . . authorize a user’s access only upon his agreement to
follow specified terms of service. If the ‘exceeds authorized access’
clause [in 18 U.S.C. § 1030(a)(2)] encompasses violations of
circumstance-based access restrictions on employers’ computers, it is
difficult to see why it would not also encompass violations of such
restrictions on website providers’ computers. And indeed, numerous
amici explain why the Government’s reading of subsection (a)(2)
would do just that—criminalize everything from embellishing an
online-dating profile to using a pseudonym on Facebook.” Id. at 394.

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3
Growers of Cal., 526 U.S. 398, 404 (1999). A quid pro quo
means “a specific intent to give or receive something of value in
exchange for an official act.” Id. at 404-05. The Court held the
same in McDonnell v. United States, 579 U.S. 550, 574 (2016):
“Section 201 prohibits quid pro quo corruption—the exchange
of a thing of value for an ‘official act.’”4 And again in Snyder v.
United States, 603 U.S. 1, 19 (2024): Ҥ 201(b), the bribery
provision for federal officials” is violated when the official
“accepts an up-front payment for a future official act . . ..”
The majority cites several ancient federal court decisions.
United States v. Birdsall, 233 U.S. 223, 230 (1914), which has
never been overruled, held that “[e]very action that is within the
range of official duty comes within the purview of” the bribery
statute then in effect. Three years earlier our predecessor court
held much the same: when “Congress used the term ‘official
function,’ it had reference to acts official in character, something
within the legal duty of the person performing them.” Thomson
v. United States, 37 App. D.C. 461, 467 (D.C. Court of Appeals
1911).5 And in the Fall case, which the majority also cites, our
court repeated a statement from Thomson: “There is no rule so
uniformly adhered to by the courts, both State and Federal, as the
one ‘that there can be no bribery of any official to do a particular
act, unless the law requires or imposes upon him the duty of
acting.’” Fall v. United States, 49 F.2d 506, 510 (D.C. Court of
Appeals 1931). As I read these decisions, they stand for the
4 It is “the corruption of official decisions through the misuse of
influence in governmental decision-making which the bribery statute
makes criminal.” Valdes v. United States, 475 F.3d 1319, 1324 (D.C.
Cir. 2007) (en banc) (quoting United States v. Muntain, 610 F.2d 964,
968 (D.C. Cir. 1979)).
5 The majority opinion uses “D.C. Circuit” but that is not accurate.

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4
proposition that “official duty” consists of performing “official
acts.”
Despite the Supreme Court’s repeated definitions of § 201
bribery, the majority seems oblivious to the portion of the
Court’s interpretation of federal bribery law that matters most in
this case. Namely, that the offense of bribery under federal law
requires proof beyond a reasonable doubt that something of
value was exchanged for an “official act.” Our court too, ruling
en banc, made what amounts to the same point: “both our
precedent and the language of the statute make clear that § 201
is not about officials’ moonlighting, or their misuse of
government resources, or the two in combination.” Valdes v.
United States, 475 F.3d 1319, 1324 (D.C. Cir. 2007) (en banc).
That exactly describes the conduct for which Paitsel was
wrongly imprisoned.
Section 201(a)(3) defines “official act” as “any decision or
action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by
law be brought before any public official, in such official’s
official capacity, or in such official’s place of trust or profit.”
In McDonnell, the Court held that “an ‘official act’ is a
decision or action on a ‘question, matter, cause, suit, proceeding
or controversy.’ The ‘question, matter, cause, suit, proceeding
or controversy’ must involve a formal exercise of governmental
power that is similar in nature to a lawsuit before a court, a
determination before an agency, or a hearing before a committee.
It must also be something specific and focused that is ‘pending’
or ‘may by law be brought’ before a public official.” 579 U.S.
at 574.
The question here is similar to that posed in

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5
McDonnell—did Paitsel’s retrieving of telephone numbers from
CLEAR amount to “official acts” as the Supreme Court has
interpreted the § 201 bribery provisions? The certain answer
here, as in McDonnell, is no.
Our en banc decision in the Valdes case, concerning
conduct indistinguishable from that of Paitsel, confirms as much.
475 F.3d 1319. We held that Valdes’ use of a police website to
match license plate numbers to individuals,6 and his receipt of
cash for doing so, did not constitute “official acts.” And so we
reversed Valdes’ conviction for receiving a gratuity in violation
of § 201(c). Id. at 1330.
As the majority opinion acknowledges, it follows from
Valdes that Paitsel could not have been convicted of violating
§ 201(c) for accepting illegal gratuities, an offense punishable
for a maximum of two-years imprisonment. See Majority Op.
38. But the majority sustains Paitsel’s conviction for bribery, an
offense punishable for a maximum of 15 years imprisonment.
On the face of it, this outcome is still another reason to
reject the majority’s conclusion. Our court recognized in Valdes
that the offense of gratuity is a lesser-included offense of the
crime of bribery. 475 F.3d at 1328. If Paitsel was not guilty of
6 The factual setting of Van Buren v. United States—“a former police
sergeant, ran a license-plate search in a law enforcement computer
database in exchange for money”—is the same as that in Valdes. 593
U.S. at 378. The Supreme Court reversed Van Buren’s conviction for
violating the Computer Fraud and Abuse Act of 1986, 18 U.S.C. §
1030. The Court held that the provision “does not cover those who,
like Van Buren”—and I add, those who, like Paitsel—“have improper
motives for obtaining information that is otherwise available to them.”
Id. The analysis in Van Buren refutes the majority’s notion that Paitsel
violated some “federal law” by accessing CLEAR. Id. at 393-94.

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6
the lesser offense, how could he be guilty of the greater offense?
My colleagues give no answer—and there is none. Instead they
throw up their hands and blame Congress for the incongruity
their decision creates.
To sum up, the Supreme Court’s interpretation of federal
bribery law is that, without an official act there is no quid pro
quo, and without any quid pro quo there is no crime of bribery
under § 201. Thus, Paitsel would be guilty of violating his
“official duty” only if he was performing “official acts,” which
he was not.7 For these reasons alone, Paitsel’s conviction for
bribery (and hence for conspiracy to commit bribery) should be
reversed.
II.
Instead of following these Supreme Court decisions, the
majority has devised some other theory—exactly what theory is
unclear—in order to affirm Paitsel’s convictions.
One thing we can discern is that the majority thinks its
theory rests on the notion that Paitsel’s “access” to CLEAR
violated the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.
Majority Op. 30-31. That notion comes out of the blue and is
7 The majority asserts that this case is not “an official act
case.” Majority Op. 38. As I have explained above, that assertion flies
in the face of the Supreme Court’s decisions in Sun-Diamond,
McDonnell, and Snyder, each of which held—as the Court stated in
Sun-Diamond—that the crime of bribery in § 201 requires “a specific
intent to give or receive something of value in exchange for an official
act.” 526 U.S. at 404-05.

-- 45 of 49 --

7
mistaken.8 The Indictment did not charge Paitsel with any such
violation and the district court, in its extensive jury instructions,
did not instruct the jury to determine whether Paitsel violated the
Gramm-Leach-Bliley Act. Indeed, the court’s jury instructions
never even mentioned that Act.
My colleagues have thus taken upon themselves the role of
a grand jury, charging an offense that was never alleged, and the
role of a trial judge who never gave an instruction dealing with
this statute, and the role of a jury who was not required to, and
did not, make any findings about Paitsel’s compliance with the
Gramm-Leach-Bliley Act.
These considerations, in addition to those in part I, above,
are more than enough to condemn the majority opinion. But I
cannot let slide the majority’s many other errors.
8 Inscrutable too is the majority’s digression about state court bribery
cases, most of which are more than 100 years old. Of its eleven state
cases, some dealt with state statutes and the rest were state common
law criminal decisions. Yet ever since 1812 it has been established
that, unlike state courts, federal courts cannot exercise common law
criminal jurisdiction. United States v. Hudson & Goodwin, 11 U.S.
(7 Cranch) 32 (1812). And while Congress can use “common-law
term[s] in a statute,” Majority Op. 22 (quoting Microsoft Corp. v. I4I
Ltd. P’ship, 564 U.S. 91, 101 (2011)), the majority’s cases do not
define “official duty” and § 201 does not “simply punish[]” bribery,
id. at 21 (quoting Carter v. United States, 530 U.S. 255, 267 n.5
(2000)). Congress therefore did not “leav[e] the definition of [the
offense] to the common law.” Id. (quoting Carter, 530 U.S. at 267
n.5). In any event, my colleagues do not indicate whether their
ancient state court cases are still good law. Their omission is
understandable. Attempting to update the century-old bribery laws in
those eleven states would be a fool’s errand. The cases have nothing
at all to do with the issues now before us.

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8
At the center of the case is CLEAR, an online platform
owned and maintained by a Canadian company, Thomson
Reuters Corporation. The company sells CLEAR to private
users such as financial institutions, collection agencies and law
firms, and to governmental entities like the FBI and the
Department of Homeland Security. As with all users of CLEAR,
the FBI pays a fixed fee for the information on CLEAR about
individuals in the company’s database. Thomson Reuters
compiles this information from many sources, public and
private.
An opening screen on CLEAR states that in order for
Thomson Reuters—for the company—to comply with the
Gramm-Leach-Bliley Act, the user must identify a “permissible
purpose” before using the company’s database. The Gramm-
Leach-Bliley Act regulates financial institutions and their
disclosure of information about their customers. 15 U.S.C.
§ 6802(a).9 Although one would hardly know this from the
majority’s opinion, the Gramm-Leach-Bliley Act is not a
criminal statute. It is a civil statute and it is enforced through
civil regulatory measures. See 15 U.S.C. § 1605.
The majority opinion states that “Federal law require[d]”
Paitsel, in order to use CLEAR, to identify his “permissible
purpose.” Majority Op. 30. The majority’s assertion, even if it
mattered, is mistaken and misleading. The screen purporting to
9 The majority opinion quotes this part of the Act: “a nonaffiliated
third party that receives from a financial institution nonpublic
personal information” may not disclose the information except in
limited circumstances. Majority Op. 5 (quoting 15 U.S.C. § 6802(c)).
The majority seems to think this provision applied to Paitsel. It did
not. Paitsel did not receive information from a “financial institution,”
as defined in 15 U.S.C. § 6809. He received information from
Thomson Reuters, which is not a financial institution.

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9
limit Paitsel’s use of CLEAR was not a “federal law,” as the
majority asserts. It was a notice from Thomson Reuters. And
contrary to the majority’s contention, this notice was not a mere
“implementation of Congress’s requirements” regarding
nonpublic information. Majority Op. 36. The CLEAR warning
screen is overbroad and covers information that Thomson
Reuters obtained from sources other than financial institutions.
The majority opinion thus renders application of a federal
criminal statute dependent on terms dictated by a private entity,
in this case a foreign corporation.
The majority makes a related error in describing the
information Paitsel retrieved from CLEAR and turned over to
Bailey.10 (Again it is not clear why the majority thinks the nature
of the information matters.)
The “information,” as charged in the Indictment, consisted
of “personal contact information” or “contact information” from
CLEAR. D.A. 76, 77, 78, 79, 81. In each of the instances set
forth in the Indictment, this “information” was a telephone
number. Id. CLEAR contains information from many sources
other than regulated financial institutions. No one knows
whether the “contact information” Paitsel obtained and gave to
Bailey—telephone numbers of apartment tenants—came from
financial institutions. A senior manager from Thomson Reuters
testified at trial that telephone numbers are not “personal
identifying information,” contrary to what the majority opinion
now asserts. That testimony is the only evidence on this subject
10 Bailey’s use of that information was for a permissible purpose
under District of Columbia law.

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10
the jury had before it.11
The majority comes up with another idea. Now we are told
that Paitsel disclosed to Bailey “at least one tenant’s Social
Security number.” Majority Op. 31.
But the Indictment charged Paitsel only with disclosing
“personal contact information,” that is, telephone numbers. The
Indictment did not mention Social Security numbers. To state
the obvious, having a person’s Social Security number would not
enable anyone to contact that person. And the trial judge’s jury
instructions never mentioned anything about Paitsel disclosing
Social Security numbers.
11 The majority opinion cites Trans Union LLC v. FTC, 295 F.3d 42,
50 (D.C. Cir. 2002), a decision upholding a regulation (16 C.F.R.
§ 313) said to include telephone numbers as “nonpublic personal
information” under 15 U.S.C. § 6809(4)(A). Another part of the
regulation now states that telephone numbers may not be so described.
16 C.F.R. § 313.3(p)(3)(ii). In any event, the jury was not made
aware of any of this and the only evidence it had came from the
testimony of the Thomson Reuters manager recounted in the text.

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