“Official Act” Element of Honest Services Fraud a Jury Question, But Not Element of Bribery

US v. Lindberg: Lindberg and his codefendant ran an insurance firm in North Carolina and attempted to give significant campaign contributions to the state’s Commissioner of Insurance in hopes that he would appoint someone else to the oversee the regulation of their business (the Commissioner got in touch with the FBI shortly after Lindberg & co. started throwing money around). As a result, the defendants were charged with one count each of conspiracy to commit honest services fraud and federal funds bribery. At trial, both the defendants and the Government objected to the district court’s proposed instruction that the replacement of the regulator constituted an “official act” for the honest services count. The defendants were convicted at trial and sentenced to prison.

On appeal, the Fourth Circuit reversed both convictions for both defendants. As to the honest services count, the court agreed that the instruction the district court gave defining replace the state regulator as an “official act” was erroneous, as it infringed on the provenance of the jury. Whether something is an official act is a question for the jury and cannot be resolved by the district court as a matter of law. The court further rejected the Government’s argument that the error was harmless, as the district court’s ruling led to it preventing the defendants from presenting evidence on the issue. In addition, while the court eventually concludes that an official act is not an element of bribery, it still concluded that the erroneous instruction on the honest services count “effortlessly bled over into the jury’s consideration of . . . federal funds bribery,” requiring the vacation of convictions on each count.